MFS Group v Gold Coast City Council

[2007] QPEC 18

[2007] QPEC 018

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P&E Appeal No BD 3564 of 2006

MFS GROUP  Appellant

and

GOLD COAST CITY COUNCIL  Respondent

BRISBANE

..DATE 15/02/2007

ORDER
CATCHWORDS: Integrated Planning Act 1997 3.5.17, s3.5.18, s4.1.47, s4.1.55 - extension of time for filing developer's conditions appeal (limited to the amount of infrastructure changes that might lawfully be made) - developer made representations about the changes, expressing determination to appeal if unsuccessful, but overlooked giving the written notice it was entitled to give in the circumstances suspending its appeal period - commencement of work on roads allowed notwithstanding appeal was not decided.

HIS HONOUR:  The Court has made an order in terms of the initialled draft, the Council offering no opposition to that course.  It directs the parties to hold a without prejudice conference in accordance with practice direction 1 of 2006 and adjourns the appeal which is a conditions appeal for further mention on the 29th of March 2007.

Otherwise the contents of the order are more dramatic and they may be thought to call for some brief comment.  Paragraph 1 orders a change of name of the appellant to its formal name of MFS Diversified Group Management Limited ACN 116 506 882.  That is relatively unremarkable.

Paragraph 2 extends the time for filing the notice of appeal to 7th of December 2006, when the document was filed. Filing ought to have occurred by 23rd November 2006 or thereabouts. The Court has jurisdiction under section 4.1.55 of the Integrated Planning Act 1997 to allow a longer time for taking a step if it is satisfied there are sufficient grounds for the extension.

Here, the appellant's consulting engineer, acting by Mr Canto, in writing dated 26th of October 2006, advised the Council of the appellant's desire to have an operational works development permit changed in respect of a condition or conditions requiring payment of infrastructure charges of the order of $2,000,000.

The letter justified the request in terms of like contributions having been made in the 1970s under some earlier development approval which presumably did not go ahead.  Mr Canto's letter expressed the appellant's "determination to formally appeal these charges should Council's position remain unchanged."

The procedure that Mr Canto had in mind is set out in sections 3.5.17 and 3.5.18 of the Act.  Under subsection (1) of the latter section Mr Canto could have given a notice which would suspend the appellant's appeal period.  He overlooked doing that, but in circumstances where the determination to appeal on a basis which appears at least arguable had been made to the Council.  The Court makes no findings about this but notes Mr Canto's contention that his attempts to get in to communication by telephone were unsuccessful because his calls were not returned; it may be accepted he needed more time to get full written representations in.  As soon as solicitors came into the matter, or appropriately quickly thereafter, the appeal was filed.

In all the circumstances, including the Council's understanding approach, the necessary extension of time should be granted.

The next aspect arises under section 4.1.47 of the Act.  The Court is willing to make an order allowing the appellant to proceed with certain roadworks, sealing and the like, notwithstanding that the appeal is on foot.  It is confined to the issue of financial contributions which the Council may exact.  There is no realistic prospect of the appellant being able to complete its development and turn it to profitable account without having to pay the Council the amount, if any, which is determined by agreement or Court decision to be  appropriate.

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