King –v- Charters Towers City Council
[2003] QPEC 36
•4 August 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
| CITATION: | King –v- Charters Towers City Council [2003] QPEC 036 |
| PARTIES: | Helen KING Appellant (Respondent) CHARTERS TOWERS CITY COUNCIL Respondent Arthur Robert TITLEY and Applicants |
| FILE NO: | 224/03 |
| PROCEEDING: | Application for joinder of parties |
| DELIVERED ON: | 4 August 2003 |
| DELIVERED AT: | Townsville |
| HEARING DATE: | 4 August 2003 |
| JUDGE: | CF Wall QC |
| ORDER: | Application dismissed |
| CATCHWORDS: | BUILDING CONTROL AND TOWN PLANNING – COUNCIL APPROVAL – TOWN PLANNING – CONSENT LOCAL GOVERNMENT – TOWN PLANNING PRACTICE – JOINDER OF PARTIES – NON-COMPLIANCE WITH RULES – TIME Application for joinder as co-respondents –application filed out of time – wh applicant established sufficient grounds for extension – wh appellant would be prejudiced by applicant’s failure to act within time . COSTS – DEPARTING FROM THE GENERAL RULE – NON-PARTIES Legislation referred to: |
| COUNSEL: | Mr C White – applicants |
| SOLICITORS: | Barret Wherry - applicants Suthers Taylor – appellant (respondent) |
PLANNING AND ENVIRONMENT COURT
JUDGE C F WALL QC
No D224 of 2003
| HELEN KING | Appellant(Respondent) |
| and | |
| CHARTERS TOWERS CITY COUNCIL | Respondent |
and
ARTHUR ROBERT TITLEY and
VIVIENNE ALETTA TITLEY Applicants
TOWNSVILLE
..DATE 04/08/2003
JUDGMENT AND ORDER
HIS HONOUR: This is an application by Arthur Robert Titley
and Vivienne Aletta Titley to be joined as co-respondents to
the appeal.
The decision of the council is dated the 21st of January 2003. The relevant provision in the Integrated Planning Act in relation to time is section 4.1.4(1).
The appellant/respondent concedes that all submitters, as Arthur Robert Titley was, had until the 4th of March 2003, to elect to join the appeal as a co-respondent.
There were six submitters. They were: The Hitching Rail, Tranbrook Proprietary Limited, O'Reily and Stevens Lawyers, A R Titley, Towers Gas and Appliance Centre and the Chamber of Commerce and Mines Incorporated. This list of submitters is taken from page 2 of the letter from Sinclair Knight Merz Proprietary Limited, dated the 13th of January 2003.
None of the submitters applied within time to become co-respondents to the appeal. The present application was filed on the 10th of April 2003. For present purposes, it is conceded by Mr White for the applicants, that there is no right on the part of Vivienne Aletta Titley to make the application or to become a co-respondent, she having not been a submitter in the first place. So, the application is to be treated as one by Arthur Robert Titley to be joined as a co-respondent.
The power to extend time is found in section 4.1.55 of the Integrated Planning Act, and that allows the Court to allow a longer time to take action, if the Court is satisfied there are sufficient grounds for the extension. The onus is on the applicant to establish that there are sufficient grounds for granting the extension which Mr Titley seeks.
For present purposes, the following are the relevant considerations:
(1) The time limit specified in section 4.1.4(1), which is 10 business days after having received written notice of the appeal. As previously mentioned, that period expired on the 4th of March 2003.
(2) The length of the extension. Some five weeks is involved.
(3) The reason for the failure to elect to become a co- respondent within the prescribed time.
Now, the reason advanced by the applicant is as follows, taken from the affidavit of Mr and Mrs Titley, and I set out here paragraphs 8 and 9 of that affidavit.
Paragraph 8:
"We decided that we would not seek to become co- respondents, based on our belief that the respondent would endeavour to support its decision without compromise. The respondent had refused the application by the appellant for a material change of use."
Paragraph 9:
"As a consequence of further inquires made on our behalf by our solicitor to the respondent, and a letter dated 1st April 2003 sent by the respondent to our solicitor, we are now concerned that the respondent may seek to compromise its decision on the appellant's application, thus we seek to be joined as co-respondents to the appeal to ensure that the respondent's decision is not compromised."
The letter dated the 1st of April 2003 from the council to the applicant's solicitors refers to meetings which the council had conducted with the submitters and the appellant for the purposes of facilitating an agreement that might be acceptable to all parties for subsequent endorsement by the Court. It is apparent from the letter that there are continuing discussions with the parties, and the chief executive officer of the Council says that:
"It is possible that a point will be reached where the council and the appellant will be able to agree on a draft consent order to be submitted to the Planning and Environment Court. Alternatively, the areas of difference between the council and appellant may be narrowed to one or two specific issues which could be the subject of resolution by the Planning and Environment Court by way of determination of preliminary issues."
The letter concluded by stating that the council was not prepared to give the undertaking which Mr Titley sought, which I assume was an undertaking to resist the appeal and seek to uphold the decision made by the council.
The council has written through its solicitors to the Registrar, advising that the council neither consents to nor opposes the application by Mr Titley to become a co-respondent.
The letter dated the 1st of April indicates that there were some discussions between the parties, including the submitters, in all probability prior to the 24th of March 2003, but certainly after the appeal had been instituted and maybe after the time for electing to become a co-respondent had expired.
Mr White submitted that had Mr Titley been aware that the council could have compromised the appeal, he would have elected to become a co-respondent within time. He submitted that as soon as he became aware of the letter dated the 1st of April 2003 from the council, he acted relatively promptly and filed the present application on the 10th of April 2003.
Mr Mosch who appeared for the respondent, submitted that the applicant had made a deliberate decision not to elect to become a co-respondent to the appeal, and would or should have known that the council could compromise the appeal and to protect his interests, he should have elected to become a co-respondent within time in case the council decided on a course of action which was not in all respects consistent with his views and his approach to the application for the material change of use. At least there was always a risk that that could happen and that would or should have been known to the applicant.
Mr White submitted that the letter dated the 1st of April supported the fact that the applicant would not have been aware that the council could have compromised the appeal until becoming aware of the contents of that letter. I think that the correct view to take is that Mr Titley should have been aware that the council could have compromised its position in relation to the appeal, notwithstanding the advice it had received from its town planner, and which it acted upon in refusing the application for a material change of use.
Such decisions by councils are not uncommon, and in fact, they often occur in relation to appeals filed in this Court. The fact that a decision could be made by a respondent council to compromise an appeal is probably a reason why there is a right on the part of a submitter to elect to become a co-respondent to an appeal so that the submitter can protect his or her or its interest in relation to the subject matter of the appeal.
(4) Prejudice suffered by or likely to be suffered by the appellant must be considered.
Mr White submitted that the appellant would not be prejudiced in a relevant sense by Mr Titley's failure to elect to become a co-respondent within time. He submitted that the fact that Mr Titley did not elect to become a co-respondent has not caused the appellant to act in any prejudicial manner, or act in any way which could result in it suffering prejudice or detriment should the present application now be granted.
I am not sure that that is the correct way to approach the question of prejudice. I think that the position of the respondent, should the application be granted, should be considered and the position of the respondent, as it exists at the time of the application to become a party should be considered, and the position of the respondent should the application to allow the joinder of the co-respondent be granted should be compared with that pre-existing position.
The appellant's position at the moment is that it is negotiating with the council and there is clearly the possibility as is apparent from the letter from the council dated the 1st of April, of a compromise decision being reached between the appellant and the council. That compromise decision would not in all probability, suit Mr Titley, which is why he wants to become a co-respondent. However, certain rights have accrued to the appellant at this stage and certain rights which were available to Mr Titley were deliberately allowed to lapse as it were. Mr Titley wants to resurrect those rights to effectively protect the position which I find was a position which always existed, namely, that the appeal could be compromised by the council.
There is, as is apparent from the letter from the council dated the 1st of April, continuing discussions between at least the appellant and the council, maybe also between the appellant, the council and submitters, and there is the distinct possibility adverted to in the letter, of a compromise agreement being reached between the appellant and the council, sufficient to dispose of the appeal all together, or alternatively, sufficient to dispose of a number of the issues in the appeal, leaving one or two perhaps to be litigated.
Now, it is apparent from the letter dated the 1st of April, that those negotiations or discussions between the appellant and the council may be advanced somewhat, and positions may have been agreed upon. In my view, were the present application to be granted, the ability of the appellant to reach a compromise could clearly be prejudiced were another party allowed to intrude into those negotiations. A position may have been reached at the moment which would be prejudiced should the application be granted, and I think there exists generally, the distinct possibility of prejudice so far as the appellant is concerned should the application be granted.
On balance, I am not satisfied that sufficient grounds have been established for an extension of time. I must have regard to the time limits in the legislation, the reason for the delay and the possibility of prejudice to the respondent.
Taking all those matters into account I am not, as I mentioned, satisfied that there are sufficient grounds for the extension, and for those reasons, the application will be refused.
...
COSTS
I think that the general rule stated in section 4.,1.23(1) more applies to the situation where the parties to a proceeding have been properly determined within time. In the present case, the applicant could have elected to become a co-respondent within time, litigated the appeal and regardless of whether he won or lost or was successful or unsuccessful, would in all probability have found himself in a situation where section 4.1.23(1) applied. However, he reached a deliberate decision not to elect to become a co-respondent, albeit relying on what he may have perceived to be the position of the council, even though I have concluded that his explanation is not sufficient, and to that extent he has defaulted in procedural requirements relating to parties to the appeal, and has made an application which has caused the appellant to incur costs, which the appellant would not have incurred had the application to become a co-respondent been made within time. So, I think that there has been to that extent, a case where the respondent has incurred costs because the applicant defaulted in procedural requirements.
If subsection (2)(e) is limited to procedural requirements such as specified in the Planning and Environment Court rules, being the Court's procedural requirements as opposed to the procedural requirements specified in the Integrated Planning Act, I nevertheless think that there has been a default in the Court's procedural requirements, those requirements being to do what has to be done within particular time limits. So, I propose to grant the application for costs, and order the applicant to pay the respondent's costs of and incidental to the application.
The orders I make are these: the application will be dismissed, and the applicants are to pay the respondent/appellant's costs of and incidental to the application to be assessed on the standard basis unless agreed.
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