Kangaroo Point Residents Association v Brisbane City Council & Meragold Pty Ltd

[2006] QPEC 11

[2006] QPEC 011

PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN

P & E Appeal No 69 of 2006
KANGAROO POINT RESIDENTS ASSOCIATION                Appellant
and
BRISBANE CITY COUNCIL  Respondent
and
MERAGOLD PTY LTD  Co-Respondent

BRISBANE
..DATE 02/02/2006

JUDGMENT

HIS HONOUR:  The co-respondent, Meragold, which was the successful applicant for a development approval from the respondent, seeks an order that this submitter appeal be struck out on the basis that it is out of time.  It also seeks its costs of the appeal, including the costs of the application.

The appellant cross-applies for an order, pursuant to section 4.1.55 of The Integrated Planning Act, that the appeal period be enlarged to 18 January 2006, being the date on which its notice of appeal was filed.

The appellant, as a submitter, was required to start an appeal within 20 business days after the decision notice was given to it (see section 4.1.28(4)).

The respondent, as assessment manager for the development application, was required to give a copy of the decision notice to each principal submitter (see section 3.5.15(3)).  A copy of the relevant appeal provisions were also required to be given (see section 3.5.15(4)).  That was done under cover of letters dated 30 November 2005 which were received on 2 December 2005.

It is common ground that the 20 business day period, calculated in accordance with the modified definition of "business day" in schedule 10 to The Integrated Planning Act, expired on 9 January 2006.

The appellant accepts that its appeal is out of time, but seeks an extension pursuant to section 4.1.55 which provides as follows:

4.1.55  Court May Allow Longer Period to Take Action.
In this part, if an action must be taken within a specified time, the Court may allow a longer time to take the action if the Court is satisfied there are sufficient grounds for the extension."

Where sufficient grounds are shown, the Court has a discretion to allow a longer time.  In deciding an application, the Court has regard to all matters which are relevant to the request.  Reference was made, in the course of argument, to a number of cases in which relevant considerations have been discussed (see, for example, Soyka v Hervey Bay City Coucil [2002]
PEC 30, and Robertson and Anor v Brisbane City Council and Ors [2005] QPELR 166).

A relevant consideration is whether there has been an adequate explanation for the delay in instituting the appeal.  In this case, the appellant explains the delay by reference to reliance placed upon an incorrect calculation, by the respondent, of the submitter appeal period or, at least, the last day for the appeal to be instituted.

The respondent's letter of 30 November 2005 stated that the appeal period was twenty business days but went on to state that:

"The council calculates the final day for lodgment of the appeal to be 18 January 2006."

The legislation does not require the Council to provide its calculation to the submitters.  The appellant, however, claims to have relied upon that calculation.

Counsel for the appellant referred to Riethmuller v Brisbane City Council (2005) QPELA 249 in which, at page 252, Robin QC DCJ said, in dicta:

"Practical considerations make it essential that ordinary members of the public are entitled to rely on indications of time limits for appeals emanating from such a responsible authority as a local government ... I would think that in the ordinary run of things, an appellant needing an extension of time under section 4.1.55, who had complied with a date nominated by the local government, would be granted the extension."

While there is merit in the sentiment which underlies those observations, they cannot be taken too far.  They do not (and do not purport to) establish any rule or presumption in favour of granting an extension whenever reliance has been placed on a local government's calculation of a time limit.  Further, the comments relate to the "ordinary run of things" where reliance is placed on such indications by ordinary members of the public.  Whether reliance on a local government's estimate justifies an extension of time must ultimately be determined having regard to the facts and circumstances of the particular case.  An examination of those facts and circumstances may reveal, for example, that it was unreasonable in the particular circumstances to rely upon the local government's estimate or may reveal other relevant, but countervailing, considerations which weigh against the grant of an extension even if the delay has been satisfactorily explained.
I accept, however, that reliance on the local government's calculation of the appeal period, where given, may, depending on the circumstances, establish an adequate explanation for delay.

Counsel for the co-respondent did not contest that actual reliance was placed on the Council's miscalculation.  He did contend, however, that such reliance was not reasonable in the circumstances.  In that regard, he pointed out that the appellant is a litigator of some experience in this Court and that, in her affidavit, Mrs Lamb, the appellant's representative, admitted that, upon reading the Council's letter of 30 November 2005:

"I did think that the appeal period nominated by the respondent was a bit long."

He submitted that, in those circumstances, her decision not to attempt her own calculation or to otherwise check the Council's calculation was unreasonable.

Mrs Lamb's explanation for her decision not to check the calculation was:

"Because I thought that the slightly longer appeal period provided by the council was due to the Christmas/New Year holiday period.  I understand that certain days are not counted in the appeal during the Christmas/New Year period."

It is true that certain days through the Christmas/New Year period are not "business days" for the purposes of calculating the submitter appeal period under the IPA.  One can only assume that Mrs Lamb was not aware of which days were excluded, since it otherwise would have been apparent that the Council's calculation could not be explained simply by the exclusion of those days. 

There is some merit in the co-respondant's submission that a litigant with some experience, whose representative has an initial impression that the Council's calculation is "a bit long", should itself assume responsibility for calculating its own appeal period. In this case that was not an entirely straight forward exercise given the time of the year. It required knowledge of the meaning of "business day" by reference to two statutory definitions (IPA and the Acts Interpretation Act). Indeed, the co-respondent itself also miscalculated the appeal period.

I consider that the decision to rely on the Council's calculation, in the circumstances, was at least understandable and provides an explanation for the delay which I accept is adequate.  That is not, however, the only relevant consideration.

It is likely that there would be detriment if an extension were granted. 

The land the subject of the development application consists of two lots which are in different ownership.  Meragold entered into contracts to purchase each of those lots.  The contracts were varied to make them conditional upon Meragold obtaining development approval by a particular date.

Acting in the mistaken belief that the submitter appeal period would expire on 3 January 2006, Meragold negotiated an extension of time, under the contracts, within which to obtain development approval to 5 January 2006 and, in the absence of any appeal being instituted by that time, gave notices which had the effect of setting the settlement date as 6 February 2006.

Subsequently, Meragold agreed with the vendors of one of the properties to rescind the contract relating to its lot and to enter into a contract of sale to Oasis Sunshine Developments (Oasis), a company with the same sole director, secretary, shareholder as Meragold.  The Oasis contract is also due for settlement on the 6th of February 2006.  It was not disputed that Meragold and Oasis are obliged to settle on 6 February 2006.

Having become committed to the purchase of the land in the belief that there was an effective development approval, Meragold and Oasis now find that they are committed to purchases in circumstances where, by reason of the submitter appeal (if it is allowed to continue), that is not the case and there is a risk that a development approval will never come into effect, if the appeal is successful.

The consequence of most immediate concern to Meragold and Oasis is the risk that they will not be able to settle and will find themselves in breach of contract and thereby exposed to a range of risks referred to in the affidavit of Mr Witt. 

Meragold and Oasis are reliant upon funds from a financier in order to settle the purchases. Those funds were approved on the basis that there was a development approval. Upon being informed of the subject appeal, the financier has said that it will be unable to fund the acquisition until the appeal has been resolved. The position in this respect bears some similarity to Gregory v. Brisbane City Council [1999] QPELR 138 (which was concerned with an application made under section 7.1(2) of the now superseded Local Government (Planning and Environment) Act).

The vendors of the respective lots gave evidence to the effect that they are inclined to hold Meragold and Oasis to their contractual obligations.  The vendor of one of the lots explained that in August/September 2005, the tenants of a boarding house on the lot were evicted and the building subsequently removed to meet Meragold's request for a vacant site.  The vendor is now holding a non-income producing asset which previously made a "major contribution" to the vendor's income and, "We don't have as much any more." 

Upon receiving notice that the contract had "gone unconditional", the vendor of other lot, in anticipation of settlement, entered into contracts to purchase two further properties.  Those contracts are due to settle on 10 February 2006.  While those contracts are subject to conditions which would enable them to be terminated in the event that the subject settlement did not proceed, the vendor of the subject land evidently does not wish to be placed in the position of having to exercise the right to terminate those other contracts and would also suffer some financial detriment in terms of wasted costs and expenses (estimated at about $6,000) if that was done.

It was submitted, on behalf of the appellant, that the weight to be afforded to the potential detriment should be reduced because, it was said, that Meragold is the author of its own misfortune and Oasis should be viewed in the same light, given its common director, secretary and shareholder, notwithstanding its later involvement.

It was pointed out that Meragold committed itself to the purchases on 5 January 2006 and so expose itself to the same risk had the appellant or any other submitter thereafter instituted an appeal within time by 9 January 2006.  In that event, Meragold would have been exposed on both purchases and Oasis would not have subsequently entered into its contract.

It was also pointed out that the Council's calculation of the appeal period was contained in a letter to Meragold and addressed to its town planning consultants which disclosed the names and addresses of the submitters.  It was suggested that Meragold was the author of its own misfortune by "jumping the gun" on the basis of its own miscalculation and without making inquiry of the Council in relation to its miscalculation or contacting the individual submitters to ascertain their attitude or delaying for a further period to allow for the prospect of appeals being lodged out of time.

The potential for detriment in the event that the appeal period were extended is not rendered irrelevant by reason of Meragold having "jumped the gun" prior to the expiration of the submitter appeal period. It is not a sufficient answer to say that Meragold might have suffered similar prejudice had the appellant or another submitter instituted an appeal within time by 9 January 2006 (compare the approach taken to a consideration of prejudice in applications to extend a limitation period - Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541). That potential was not realised since no appeal was started within time.

Counsel for each of the parties ultimately accepted that it was relevant to have regard to all potential detriment, including that arising in the context of Meragold "jumping the gun". 

As counsel for the appellant pointed out, the Council's miscalculation of the appeal period was contained in a letter to Meragold dated 30 November 2005.  It is likely that the letter was received after Meragold had, through its solicitors, asked the vendors for an extension of time within which to obtain a development approval (to 5 January 2006) but prior to the extension being agreed to or Meragold subsequently giving the notice which set the settlement date.

The Council's letter to Meragold informed the reader that copies of the decision notice had been sent to the submitters, advised that the submitter appeal period was 20 business days, stated the Council's calculation of the appeal period, attached a list of names and addresses of the submitters "so that you can search the appeal register" in order to "assist you in establishing whether or not an appeal has been lodged".

The letter to Meragold did not, however, enclose a copy of the covering letter which had been sent to the submitters or otherwise inform the reader that the submitters had been given the "benefit" of Council's miscalculation of the appeal period.  There is no evidence which establishes that Meragold or Oasis were put on notice that misleading information was given to the submitters or that they were acting on a wrong assumption that an appeal could be instituted at any time up to 18 January 2006.

While the reference in that letter to the Council's miscalculation of the final day for lodgement of an appeal might have caused some astute readers to speculate as to what, if anything, the submitters had been told or believed and to take one or more of the steps suggested by counsel for the appellant, I do not consider that it was entirely unreasonable for Meragold or Oasis not to have been put on such inquiry or to have undertaken such steps, given the content of the letter.

There are, however, other relevant issues to consider.  The appeal relates to a proposed multi-unit dwelling at Kangaroo Point which attracted a number of submissions.  It is not possible, in the present context, to reach any definitive views about the strengths of the appellant's case, but the grounds of appeal in the notice of appeal include matters of apparent relevance.  There is no suggestion that the appeal is frivolous, vexacious or is doomed to failure on the merits.  As is common in this jurisdiction, the issues raised include those of relevance to the interests of the broader community. 

As this is the only appeal in respect of the Council's decision, a decision to strike it out would have the effect that the merits of the proposal would not be reviewed in this Court at the instance of the appellant or anyone else.  This is of particular concern to two of the other submitters who, in affidavit material, say that they decided not to exercise their separate appeal rights given the Kangaroo Point Residents Association's decision to institute this appeal.  It should be noted, however, that one of those submitters says that she too would have relied upon the Council's calculation of the final day for the appeal.  The other does not say as much, but does refer to the Council's miscalculation. 

The circumstances of this case are regrettable.  Neither a decision to allow or to refuse an extension will deliver an entirely satisfactory outcome.  There are countervailing factors to be considered.  Ultimately, having regard to all the circumstances, I am not persuaded that an extension ought be granted, particularly in light of the significant potential for detriment to Meragold and others, as referred to above.

I refuse the appellant's application and I will strike out the appeal. 

The co-respondent seeks costs pursuant to Section 4.1.23(2)(e) of the IPA, which permits the Court to make an order for costs where "a party has incurred costs because another party has defaulted in the Court's procedural requirements." 

It was submitted, for the co-respondent, that the jurisdiction to order costs was enlivened by the appellant's failure to institute its appeal within the time prescribed by the IPA.  I am not sure that is so. 

The provision refers to a default in the "Court's" procedural requirements. That qualification did not appear in the analogous provision under the P and E Act. In Heilbron and Partners v. Pine Rivers Shire Council (1993) 80 LGERA 434 the Court of Appeal held that the P & E Act provision related to proceedings in the Court and not other procedural requirements provided by the Act. It might be that the subject provision is limited to procedural requirements such as those contained in the Court's Rules or by order or direction of the Court. (See the discussion in King v. Charters Towers City Council and Others [2004] QPELR 47 at 53-54.) It is unnecessary for me to resolve that issue however because I would not be inclined to make an order for costs in any event.

Costs do not follow the event.  Even in circumstances where the Court's jurisdiction to award them is enlivened, there is a residual discretion. 

In this case the failure to comply with the statutory requirement in relation to the institution of an appeal was, I have accepted, adequately explained.  While the appeal could then have been withdrawn once the mistake was discovered, the decision by the appellant to seek an extension of time was reasonable and the merits of the application relatively finally balanced.

I will make no order as to costs.

For those reasons the appellant's application for extension is refused.  The appeal is struck out and there is no order as to costs.

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