Laogard Pty Ltd v. Calliope Shire Council & Burgmann

[2007] QPEC 116

[2007] QPEC 116

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2711 of 2007

LAOGARD PTY LTD  Appellant

and

CALLIOPE SHIRE COUNCIL  Respondent

and

PETER BURGMANN  Co-Respondent

BRISBANE

..DATE 02/11/2007

ORDER

Catchwords
Integrated Planning Act 1997 s 1.2.2, s 1.2.3(1)(a), s 41.1.4(b), s 4.1.47 - where appellant against a development approval granted to a commercial competitor had taken no steps to serve any of the four persons required to be served or to file an application for directions - appeal ordered struck out at the end of a defined period unless such steps had been taken - co-respondent developer permitted (at his risk) to start the development although appeal not determined.

HIS HONOUR:  This is the order:

1. Order under section 4.1.47(2) of the Integrated Planning

   Act 1997 that the co-respondent at his risk may start the development approved by the respondent's decision notice DA07/0011 notwithstanding that the appeal has not been decided;

2. Order that the appeal be struck out seven days from today

   unless the appellant within that time has:
   (a)  given written notice of it to:

   (i)  the Chief Executive, Department of Local

   Government;

   (ii) the respondent;
   (iii)the Chief Executive of the Department of Main

   Roads;

   (iv) the co-respondent, Peter Burgmann filed and served on the other parties an application
   for directions as required by practice direction number 1 of 2006 under section 41.1.4(b);

3. The matter is to be mentioned, appearance required by all parties on 9th of November 2007;

4. Liberty to apply;

5. Costs reserved.

I shall explain the reasons for the making of those orders.

The appeal was commenced on the 25th of September 2007 by "Michael Fearns on behalf of Laogard Pty Ltd."  It is an appeal by a commercial competitor against the Council's granting of a development approval or permit authorising a material change of use on a site of three hectares or more on Boyne Island for "home industry - fabrication and machining workshop".

The development application was received by the respondent Council on the 22nd of January 2007.  Necessarily it was made under planning arrangements preceding the current ones which came into effect on 27th of April this year after the Council had adopted them two weeks earlier.

Those matters are noted because reliance is placed by the appellant on the obtaining of legal advice by the Council in relation to a development application which is said to be indistinguishable to the effect that it was not open to the Council to approve such a use.  The Court was told by Mr Livingstone-Ward, the Council's solicitor, that the Johnsons' application was made to the Council on the 28th of June 2007.  While it is a possibility that the Johnsons' application was a "development application (superseded planning scheme)" it may well be that it was made under the new planning arrangements.  That is the assertion of Mr Murray of counsel who has participated in today's hearing by telephone as the legal representative of the co-respondent, the successful applicant/developer, Mr Burgmann.

It is convenient at this point to note that there was no representation of the appellant and no response by it when its name was called outside the Court.  I am feeling the usual embarrassment which always attends proceeding in the absence of a litigant whose situation is going to be affected by an order. 

There is some uncertainty regarding the notice, if any, which the appellant has had of today's application.  It was originally set down for 9.15 this morning, a time which the exigencies of the Court work and my own involvement in the Chief Justice's Rules Committee meant it had to be changed until 12.30 p.m. today.

In the event the matter was reached earlier.  I make it clear that should there be any appearance by the appellant at 12.30, which is now only minutes away, the orders indicated above will be reviewed in the light of evidence it may wish to adduce and submissions it may wish to make.

Its appeal is working considerable inconvenience to Mr Burgmann by reason of section 4.1.47(1) of the Act, which enacts that development must not be started until an appeal such as the present is decided or withdrawn.

It was not until Thursday the 23rd of August this year that the Council notified its favourable decision on Mr Burgmann's application to the appellant, although that decision had been made in early July.  The procedure followed was the customary one of the assessment manager not advising submitters of the outcome of a development application until the situation has clarified by the applicant's appeal period ending.  There may well be significant occurrences, such as a negotiated decision notice‑‑‑‑‑

...

HIS HONOUR:  It is not possible to say whether Loagard's appeal was late because the Council cannot be precise about the date when actual posting occurred of the notice of the decision which went to Loagard Pty Ltd.  There is no doubt that the notice was received, given that Mr Fearns sent the Council a letter dated 10th of September 2007 which he asked be taken as "my appeal against the approval". 

That communication alerted the Council to the possibility of an appeal eventuating as one now has.  Mr Livingstone-Ward for the Council has been assiduous in trying to get Loagard to comply with its obligations as an appellant, which I have indicated by the terms of the order set out above.  There has been no useful result.

It is plain that the Council became aware of the appeal and established its right to participate in it by filing an entry of appearance on the 16th of October 2007.  If the appeal is late, which I am not for the moment suggesting, it would only be by a day or so and, other things being equal, Loagard might anticipate getting an extension of time under section 4.1.55. 
The appellant can be taken to task for its complete disregard of the requirements which the Act, the Planning and Environment Court Rules and the Practice Direction establish.

I have hinted already that it is unclear what Laogard knows of today's proceeding which is an application by Mr Burgmann for an order that the appeal be dismissed. 

Mr Murray tells me his instructions from his instructing solicitors, Kenny and Partners, are that service of the application on the appellant occurred by express post with the relevant items being entrusted to Australia Post on the 30th of October 2007.  That is a statement from the Bar table per telephone and not the subject of evidence as strictly it ought to be.  There is no inevitability, assuming Mr Murray's instructions are correct, about the service having been effective at any particular time. 

In those circumstances it is appropriate for the Court to allow the leeway of seven days which is indicated above.  The liberty to apply secures to the appellant the opportunity to approach the Court should some indulgence be needed to keep the appeal on foot.

The ordinary person would probably be impressed by the appellant's assertion that Mr Burgmann has been favourably treated by the Council and without justification on the basis of the legal advice said to have been taken in respect of what is now known as the Johnson application.
There has been no occasion for the Court to go into the details of this but I am accepting from Mr Murray that that legal advice is likely to be irrelevant because of changes in the applicable definition of home industry.  He advises the Court that Mr Burgmann's application was made on the basis of the Council's local law number 42.  It is not replicated in the new planning scheme, which has other relevant definitions.

In situations such as the present where Mr Burgmann's activities are being held up - I interpolate it is now almost four months since the Council made its decision - the Court ought to keep in mind its obligation under section 1.2.2 of the Act to perform its functions in a way that advances the purpose of the Act which includes, under section 1.2.3(1)(a), ensuring that decision-making processes are accountable, coordinated and efficient.

Mr Livingstone-Ward tells the Court that his client is appreciative of Mr Burgmann's frustration at the delay that's being forced upon him.  While he might be inclined to blame the Council for that, it is in truth a situation of the Act necessarily working in that way. 

In all the circumstances I concluded that an order under section 4.1.47(2) of the Act ought to be made authorising Mr Burgmann to start the development.

There are suggestions in material emanating from the appellant

which includes its submission, a copy of which I made Exhibit 1, that Mr Burgmann may have been conducting relevant activities on the site all along.  If so, the situation may well be the familiar one of an owner or occupier of premises seeking to regularise things by making the appropriate development application to authorise activities on the site.  I have no idea at the moment whether the Council's by laws authorised anything that was done there. 

They may have, in part.  The material before the Court indicates that there was felt the necessity of a proper development approval being obtained for a material change of use, and also for an environmentally relevant activity. 

There are detailed conditions attached to the approval.  Those involve a certain amount of work so that the site may operate in an appropriate way.  There is also at least one condition requiring monetary contributions to the Council.

If Mr Burgmann was willing to risk the wasting of expenditure in the sense that should the appeal ultimately succeed, he may be precluded from pursuing the use, I consider that the use ought to be permitted to go ahead on the basis of the approval.  I am prepared to declare myself "satisfied that the outcome of the appeal would not be affected", should that occur.

If no development approval is obtained, then at some point, Mr Burgmann may have to cease the use, and even remove fixtures or improvements from the site.  The circumstances are not ones in which that could not be done.

...

HIS HONOUR:  There are two things necessary to tie things up.  It is after 12.30, the Bailiff has called the appellant's name outside the Court again, and there is no appearance. 

The evidence before the Court today is Mr Livingstone-Ward's affidavit with exhibits filed on the 24th of October 2007; Mr Burgmann's affidavit, sworn on 29th October 2007 containing 13 paragraphs on two and a-bit pages, also Exhibit 1; otherwise, it should be made clear that the Court is acting on the basis of statements that have been made by Mr Murray and Mr Livingstone-Ward, which I felt comfortable about doing.

...

HIS HONOUR:  I direct that the Registrar transmit a copy of this order to the appellant by post and facsimile to the address/number shown on the Notice of Appeal.

-----

NOTE  At the mention on 9 November 2007, Mr Fearns (for Laogard) appeared by telephone, the other parties being represented as on 2 November.  An order was made deleting

"seven days from today" from paragraph 2 of the original order and substituting "as from the close of business on 16 November 2007"; a further mention was ordered for 9.15 a.m. on 28 November 2007, should the appeal still be on foot.