Loxton –v- Whitsunday Shire Council & Ors
[2005] QPEC 11
•25 February 2005
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
| CITATION: | Loxton –v- Whitsunday Shire Council & Ors [2005] QPEC 011 |
| PARTIES: | Mark LOXTON, Maria LOXTON and Graeme FERRIER Appellants Against WHITSUNDAY SHIRE COUNCIL Respondent And BSD ENTERPRISES PTY LTD 1st Co-respondent And DEPARTMENT OF MAIN ROADS 2nd Co-respondent |
| FILE NO: | 438 / 04 |
| PROCEEDINGS: |
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| DELIVERED ON: | 25 February 2005 |
| DELIVERED AT: | Townsville |
| HEARING DATE: | 25 February 2005 |
| JUDGE: | CF Wall QC |
| ORDERS: | 1. Application by applts dismissed. 2. Application by 1st co-resp granted. 3. Appeal struck out. 4. No order for costs. |
| CATCHWORDS: | APPEAL – Extension of time – Building control and town planning – Material change of use application granted by resp – appeal by submitters – service of notice of appeal on resps 6 weeks out of time – fault of applts solicitors – wh. sufficient grounds for extension of time – prejudice to 1st co-resp – extension of time refused – appeal struck out. Legislation referred to: |
| COUNSEL: | Mr M. Drew for the Appellants Mr B. Job for the 1st Co-respondent |
| SOLICITORS: | Hinschen Lawyers for the Appellants Suthers Taylor as town agents for Deacons for the Respondent Wilson, Ryan & Grose for the 1st Co-respondent Connolly Suthers as town agents for Crown Law for the 2nd Co-respondent |
HIS HONOUR: These are applications by the appellants for an extension of time to serve the respondents with the notice of appeal and by the first co-respondent, BSD Enterprises Proprietary Limited, to strike out the appeal by reason of its non-service within the prescribed time.
On about the 12th of February 2004 BSD Enterprises made application to the council for a material change of use for an integrated development and reconfiguration of a certain land at Shute Harbour Road, Cannonvale. The appellants were submitters in relation to that application.
On the 5th of October 2004, the application was approved by the council and by a notice of appeal filed on the 30th of November 2004, the submitters appealed against the decision of the council. The notice of appeal was filed within time. By section 4.1.41(2)(b) of the Integrated Planning Act, the appellants were required within two business days of the 30th of November 2004 to serve the notice of appeal on other relevant parties.
The notice of appeal was not served on the council, BSD Enterprises or the State of Queensland until the 10th or 11th of January 2005. Service was therefore some six weeks out of time.
The application by BSD Enterprises to strike the appeal out because of non-compliance with the service requirements of the Act was filed on the 25th of January 2005. The application by the appellants for an extension of time for serving the notice of appeal was not filed until yesterday, the 24th of February 2005.
The appellants' application is made under section 4.1.5(5) of the Integrated Planning Act which provides:
"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."
The appellants rely upon default by their solicitors. The default occurred in the following way, according to affidavit of Joanne Linneweber, the solicitor for the appellants:
"1.Hinschen Lawyers are the solicitors for the Appellants. I have the conduct of the matter. Hinschen Lawyers has two lawyers, myself and the principal Gail Hinschen. I am an associate solicitor. Gail Hinschen is currently 8 months pregnant.
2.On 30 November 2004 I arranged with Ruddy Tomlins and Baxter to file the Appellants Notice of Appeal in the Planning and Environment Court at Townsville.
3.I left for annual leave on the 2 December 2004 and returned on the 20 December 2004. Prior to leaving, I left a diary note to my secretary, Nicole Haines, to the effect that the Notice of Appeal, once received from Ruddy Tomlins and Baxter, had to be served by the 13 December 2004 being 10 business days after filing.
4.My secretary did not fully understand what was required and consulted with the Gail Hinschen. I am informed by Nicole Haines and believe that Gail Hinschen advised my secretary to leave it with her and she would take care of it.
5.I returned to work on the 20 December 2004.
6.On 23 December 2004 Gail Hinschen brought the file in to me and advised me she hadn't attended to it. I am informed by Gail Hinschen and believe that the reason that the Notice of Appeal was not served on time was that in the rush of work before Christmas she had misread my note and thought that the Respondent had 10 days to file an Entry of Appearance once we had served them not that we had 10 days to serve the Notice of Appeal.
7.On that day, 23 December 2004, upon realizing her mistake Mrs Hinschen caused letters serving the Notice of Appeal to be sent.
9.The failure to serve the Notice of Appeal was not the fault of the Appellants.
10.I do not believe that any prejudice has been suffered by any of the Respondents in that they have not missed any important time frames."
When Mrs Hinschen on the 23rd of December 2004 realised her mistake, she posted by ordinary mail the notice of appeal to the council, BSD Developments and the State of Queensland.
The letter to BSD Enterprises was sent to its registered office. That office was closed during the Christmas holiday period with the consequence that the notice of appeal was not received by BSD until the 10th or the 11th of January 2005.
The letter to the council was addressed to "The Chief Executive Officer, Main Street, Proserpine 4800". The council was not identified as the addressee. The chief executive officer of the council did not become aware that the appeal had been commenced until service of the notice of appeal was effected on or about the 11th of January 2005. It appears that somehow the letter found its way to the council offices.
The council neither consents to nor opposes the application to extend time and the State of Queensland takes a similar approach.
There is no suggestion by the respondents that the appeal is frivolous. Mr Drew, for the appellants, argues that the appeal has merit and that the appellants should be given an opportunity to air the arguments that they have against approval of the application. Mr Drew further submits that this may very well be a case where the council has granted approval contrary to its planning scheme, in that the land falls within a scenic management zone and the council according to its planning scheme was required to conduct a visual amenity assessment, which it did not do. For these reasons, it is submitted that there is a public interest aspect involved in the appeal. Exhibit 3, which is a letter from one of the submitters, indicates that the council was advised that as the area falls within a scenic management zone the applicant was required to conduct a visual amenity assessment, which appeared to be missing. It is not therefore a situation where the council was not aware of this matter. It is not conceded that a visual amenity assessment was required. BSD concedes that the strategic plan in certain circumstances requires a visual amenity assessment, but does not concede that one was required in this case.
Mr Job for BSD submits that the appellants' material does not demonstrate sufficient grounds for an extension of time. He submits that Ms Linneweber was aware that there were time constraints for service imposed by the Act, even though she erroneously thought (and apparently still did when she swore her affidavit) that the time for service was 10 days rather than 2 days. He further submits that after she left on leave on the 2nd of December 2004 sufficient steps were not taken by her to ensure that the notice would be served.
There is no evidence of any follow-up by the appellants of their solicitors to see how things were going or to confirm that the notice of appeal had been served. In fact, no affidavit has been filed by any of the appellants. Likewise, no affidavit has been filed by Ms Linneweber's secretary or by Mrs Hinschen.
The conduct of the solicitors, in my view, was inexcusable on two grounds.
(1)They were not aware of the correct time limit, and they should have been; and
(2)No sufficient steps were taken by Ms Linneweber to ensure that the notice was served within time, even on the basis of her erroneous estimate of what that time was.
There appears to have been a complete absence of any proper system in the office of the solicitors, which has led to the present state of affairs.
Mr Drew further submits that no fault can be attributed to the appellants, rather to their solicitors. He submits that BSD Enterprises and the State of Queensland have elected to become co-respondents. He submits that there is no prejudice occurring to the respondents as a result of the failure to serve the notice of appeal in time.
Prejudice is relied upon on behalf of BSD Enterprises and details are contained in two affidavits by Graeme Richard Mitton. The first was filed on the 22nd of February 2005 and is in the following terms:
"1. I am a director of BSD ENTERPRISES PTY LTD ('the company'), the first co-respondent in this appeal, and a person duly authorised to make this affidavit. The registered office of the company is CE Smith & Co Whitsunday, "Cumberland House", 2 Island Drive, Cannonvale.
2. On 5 October 2004 the Whitsunday Shire Council issued a decision notice with respect to the development the subject of this appeal. The co-respondent was provided with a copy of the decision notice and subsequently advised the Council that it would accept the development conditions.
3. On 3 November 2004 I received a letter from the Whitsunday Shire Council dated 2 November 2004 in the following terms:-
'In reference to the above application please be advised that the submitters have been advised on the 2nd November 2004 that their Appeal Period has commenced.
If you have any queries please do not hesitate in contacting me on 4945 0248.'
4. I did not receive notice of the lodgement of this notice of appeal until 10 January 2005.
5. Shortly or immediately after 7 December 2004:-
(a)The company instigated a marketing campaign including newspaper advertising, distribution of brochures and placement of signage in the Whitsunday area. The company would not have instigated a marketing campaign and incurred that expenditure in the name of the company if the company had been aware that this appeal had been instituted.
(b)The company commissioned its architects to proceed with detailed designs for the construction phase of the development project. The detailed development design phase of the project would ordinarily take approximately 3 months to complete. The company would not have commissioned the architect to proceed with detailed design documentation if the company had been aware that this appeal had been instituted. A successful appeal by a submitter could result in the development application being refused and there would be no need for detailed design documentation.
(c)The company sought expressions of interest from prospective purchasers with respect to the development project. The company has received commitments totalling over $1.5 million in sales revenue. These purchasers were informed that the company anticipated that the development project would be completed prior to Christmas 2005. The basis upon which the company and its consultants made these representations was that the appeal period had ended and it had not received notice of the institution of an appeal in the Planning & Environment Court.
6. I verily believe that the company will suffer extreme hardship as a result of the late notification of the issue of a notice of appeal. The company would not have authorised expenditure between $10,000.00 and $30,000.00 if it had been notified in accordance with the time frames provided for in the Integrated Planning Act. The failure of the appellant (sic) to notify the company of the institution of the appeal will also result in the disruption of its marketing campaign and increases the potential for legal proceedings with respect to representations made concerning development time frames. The disruption of the marketing campaign has the potential to jeopardise total sales revenue for this project."
The second affidavit was filed by leave this morning and is in the following terms:
"1. I seek leave of the Court to refer to my affidavit sworn on 18 February 2005.
2. In relation to paragraph 5(a) I say that the marketing campaign undertaken by the company included the following expenses:-
16/12/04 New sign (Tropical Signs) $3,150.00
Insurance for sign $ 683.37
Whitsunday Shire Council - $ 132.00
sign application fee
Whitsunday Shire Council - $ 99.00
sign licence fee
Sign engineering $ 495.00
9/12/04 Advertising - Whitsunday $ 350.00
Times
16/12/04 Advertising - Whitsunday $ 350.00
Times
20/12/04 A4 brochures $ 570.00
23/12/04 Advertising - Whitsunday $ 350.00
Times
18/12/04 JL Slashing - slash site for $ 99.00
sale _________
$6,278.37
3. In relation to paragraph 5(b) I say that the company only commissioned the architect to proceed with detailed designs for construction purposes because the deadline for the filing and service of an appeal had passed. The company had estimated that the design and construction process would take approximately 12 months. As the company believed the appeal period had passed, the company informed potential purchasers that the proposed building would be ready for occupation prior to the Christmas/New Year period in 2005. To achieve this deadline, it was essential that the architect commence work almost immediately. The company has spent $41,670.00 to date with the architect on works associated with detailed design.
4. In relation to paragraph 5(c) the expressions of interest sought were in the nature of a 'registration of interest' form. That document is not a binding contract and the potential purchaser is able to cancel its registration of interest at any time. Potential purchasers who sign these registrations of interest were told that the company had development approval for the project. The company's credibility with respect to these representations will be adversely affected. While the registrations of interest are not binding, my experience in the development industry is such that I believe the majority will convert to contracts. In my opinion, potential purchasers will seek alternative commercial premises if they are of the view that the premises cannot be occupied this year."
Mr Mitton was required for cross-examination on his affidavits and he gave evidence in relation to the expenditure of money by BSD Enterprises on the assumption that no appeal had been lodged. The architects' fees referred to in paragraph 3 of his first affidavit include fees for work which was connected with the making of the application. However, he estimates that since the 7th of December 2004 the architects have performed further work and BSD has incurred liability for further fees as a result of the architects commencing detailed design plans. Further, some five or six amounts of $3,000 from potential purchasers have been received. They were received in December 2004.
Mr Mitton estimates that but for the appeal the development, the subject of the application, would be completed prior to Christmas 2005 and potential purchasers were so advised. If the appeal is to proceed, that date will be put back with, I consider, the potential for some loss to the developers.
If the appeal proceeds and is successful, BSD Enterprises will lose the money referred to in paragraph 2 of Mr Mitton's second affidavit. That money would not, in my view, have been expended had BSD Enterprises been aware of the existence of an appeal. Likewise, the architect in all probability would not have been commissioned to do any further work pending the outcome of the appeal.
BSD Enterprises has therefore in my view assumed at least some financial obligations and commitments in respect of the development in reliance on the apparent absence of any appeal within the specified period. It has expended money which it would not have expended. That money may not be able to be recovered.
There is therefore a situation of real financial prejudice to BSD Enterprises caused by the appellants delay in serving the notice of appeal. In my view that prejudice outweighs the apparent lack of fault on behalf of the appellants as opposed to their solicitors and is of sufficient importance to warrant rejection of the application by the appellants for an extension of time.
In my view for these reasons there are not sufficient grounds for granting the extension sought by the appellants. In those circumstances the appellants' application to extend time will be dismissed and the application by the co-respondent BSD Enterprises that the appeal be struck out will be granted.
The council, BSD Enterprises and the State of Queensland have not sought costs and in those circumstances, there will be no order for costs on the applications.
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