Mun Wha Education (Mason College Australia) Pty Ltd v Gold Coast City Council
[2008] QPEC 63
•10 September 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mun Wha Education (Mason College Australia) Pty Ltd v Gold Coast City Council & Anor [2008] QPEC 63
PARTIES:
MUN WHA EDUCATION (MASAN COLLEGE AUSTRALIA) PTY LTD
(Appellant)
v
GOLD COAST CITY COUNCIL
(Respondent)
and
PARKWOOD ACTION GROUP INC & ORS
(Co-respondents by election)
FILE NO/S:
BD 2677 of 2007
BD 3367 of 2007
DIVISION:
Appeal
PROCEEDING:
Applications
ORIGINATING COURT:
Planning & Environment Court
DELIVERED ON:
10 September, 2008
DELIVERED AT:
Brisbane
JUDGE:
Griffin SC DCJ
ORDER:
BD 2677 of 2007 – Application dismissed – Appeal dismissed
BD 3367 of 2007 – Leave to extend time within which to appeal granted
COUNSEL:
SOLICITORS:
The appellant Mun Wha Education (Masan College Australia) Pty Ltd (“Mun Wha”) by B.D. 3367 of 2007 (the second appeal) application seeks an order for the extension of time within which to commence an appeal against the Gold Coast City Council’s (the Council) decision to refuse a development application for the redevelopment of part of the Parkwood International Golf Course. The particulars of this application are that Mun Wha seeks an order for the time to commence this appeal to be enlarged to 23 November 2007, that is the date on which Mun Wha filed a second notice of appeal against the Council’s refusal.
An earlier notice of appeal No. 2677 of 2007 (the first appeal) is the subject of application and challenge by parties and was adjourned pursuant to an order of Wilson SC DCJ on 14 December 2007. The sufficiency and effect of that notice of appeal is central to that action, but the historical fact of the lodgement of that appeal on 21 September 2007 is of some relevance to the arguments advanced by all parties.
I determined that I should hear both applications. The first appeal application was heard on 24 July 2008.
Some factual matters
It is relevant to a consideration and understanding of the nature of both applications to set out in some little detail the history of the matter. On 3 March 2006 a development application for a material change of use was made to the Council by the then registered owner of the land, Fedwood Pty Ltd (“Fedwood”). The land is situated at 76 Napper Road, Parkwood, (“the subject land”). The land in its present state is developed as the Parkwood International Golf Course. Pursuant to provisions of the Integrated Planning Act (IPA), the development application was publicly notified and the application proceeded through the IDAS process in the ordinary form for an impact assessable development application. The application was considered by Council and on 13 August 2007 refused. The Council communicated its refusal decision by way of a decision notice received by Fedwood’s consultant, Dredge & Bell Planning, on or about 24 August 2007. Section 4.1.27(2) of IPA sets out requirements for the institution of an appeal being 20 business days after the date the decision notice was communicated to Fedwood. In fact, on 21 September 2007 Mun Wha filed a notice of appeal (Appeal No. 2677 of 2007) – the first appeal.
It is immediately obvious that Mun Wha was not the original applicant for the development approval made to Council on 3 March 2006, although I note that the filing of the first notice of appeal by this appellant, Mun Wha, is evidence of its intention to pursue an appeal against the Council’s refusal.
It is relevant to set out some additional historical facts relating to the dealings between Fedwood and Mun Wha. Fedwood entered into a contract with the appellant for the sale of the subject land. Those negotiations in relation to the contract occurred during the period that the application was before Council but before the Council’s refusal decision. In fact settlement of the contract was effected on 5 July 2007, the refusal date being 13 August 2007. According to the affidavit of Marshall, at paragraph 4, on 19 September 2007, that is, two days before the expiration of the original appeal period, the appellant gave its solicitors instructions to appeal to the Planning and Environment Court against the Council’s refusal. The solicitor Marshall obtained instructions to appeal at a time when Mun Wha was the registered owner of the subject land.
Subsequent steps were taken by the Council alerting the appellant to the fact that the Council considered the original notice of appeal to be ineffective, and a second notice of appeal was filed by Mun Wha on 23 November 2007 (Appeal No. 3367 of 2007), a step taken obviously by the appellant to overcome the objections by Council to the first notice of appeal. It is the effect of this second notice of appeal which is central to the issues litigated before me in the second appeal application.
Simmering beneath what is apparently a simple application for an extension of time are some potentially complex ingredients including the effect of a Deed of Assignment in favour of the appellant and the interpretation and operation of provisions of IPA Part 4 which deal with the general application of principles for extension of time.
On 23 October 2007 Fedwood and Mun Wha executed a Deed assigning rights in the development application to Mun Wha. It is relevant here to set out some details of the Deed itself:
B.“An appeal was filed in the Planning & Environment Court (No. 2677/2007) against the Council’s refusal of the application by Mun Wha Education.
E. Fedwood wishes to assign the benefit of the application (including the right to appear in any court proceedings concerning the application) to Mun Wha Education.”
There is no doubt that the intention of the Deed is abundantly clear in attempting to assign to Mun Wha rights in the original application made on 3 March 2006. However what is central to the dispute and controversy in this application is the effect, if any, of that assignment on Mun Wha’s right to appeal and the standing, if any, of that appeal under I.P.A.
On 14 December 2007 Alan Wilson SC DCJ allowed the adjournment of the hearing of issues in relation to the first notice of appeal in order that this application be dealt with.
It is helpful and also relevant to set out the document Exhibit 1 in its relevant parts which is a chronology of the events referred to above.
The details set out in the chronology are, as I apprehend it, quite uncontentious.
Chronology
1. Fedwood lodges application for MCU and ROL.
3 March 2006
2. Contract of Sale between Fedwood and Mun Wha signed.
2 April 2007 3. Contract of Sale between Fedwood and Mun Wha settles.
5 July 2007 4. Council resolves to refuse application.
13 August 2007 5. Freehold land register amended to record Mun Wha as registered owner of the subject land.
29 August 2007 6. Mun Wha files Notice of Appeal (Appeal No. 2677 of 2007).
21 September 2007 7. Fedwood and Mun Wha executed deed assigning rights in the application (and appeal) to Mun Wha.
23 October 2007 8. Mun Wha commences fresh appeal (Appeal No. 3367 of 2007).
23 November 2007 9. Hearing of preliminary points in Appeal No 2677 of 2007 adjourned.
11 December 2007
The relevant provisions of IPA in relation to this application are these:
“4.1.27 Appeals by applicants
(1) An applicant for a development application may appeal to the court against any of the following—
(a) the refusal, or the refusal in part, of a development
application;
(b) a matter stated in a development approval, including any condition applying to the development, and the identification of a code under section 3.1.6;
(c) the decision to give a preliminary approval when a development permit was applied for;
(d) the length of a period mentioned in section 3.5.21;
(e) a deemed refusal.
(2) An appeal under subsection (1)(a) to (d) must be started within 20 business days (the applicant’s appeal period) after the day the decision notice or negotiated decision notice is given to the applicant.
(3)An appeal under subsection (1)(e) may be started at any time after the last day a decision on the matter should have been made.
4.1.54 Appeal decision
(1)In deciding an appeal the court may make the orders and directions it considers appropriate.
(2) Without limiting subsection (1), the court may—
(a) confirm the decision appealed against; or
(b) change the decision appealed against; or
(c) set aside the decision appealed against and make a decision replacing the decision set aside.
(3) If the court acts under subsection (2)(b) or (c), the court’s decision is taken, for this Act (other than this decision) to be the decision of the entity making the appealed decision.
(4) If the appeal is an appeal against the decision of a tribunal, the court may return the matter to the tribunal with a direction that the tribunal make its decision according to law.
4.1.55 Court may allow longer period to take an 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.”
In Schedule 10 to IPA the term applicant is defined as follows:
“applicant-
(a)for Chapter 3 means the applicant for a development application; or
(b) for a development application mentioned in Chapter 4, includes the person in whom the benefit of the application vests.”
The IPA contemplates therefore a definition extending the persons who may properly be regarded as an applicant beyond the original party who made the application at first instance. At the heart of this application is the question as to whether the present appellant, Mun Wha, may at the time of the filing of the second notice of appeal on 23 October 2007, be properly regarded for the purpose of that notice of appeal, as an applicant.
Section 4.1.55 of IPA contemplates that the Court may allow an extension of time on the condition of satisfaction that there are “sufficient grounds” for the extension. This however will only be so in circumstances where the appeal is competently instigated by an “applicant”.
Validity of first Notice of Appeal
At the heart of this pre appeal application is whether during the relevant appeal period only Fedwood had a right to appeal to the Planning & Environment Court. By the time of Mun Wha’s first appeal the contract for the sale of the relevant land between Mun Wha and Fedwood had been settled. It is argued by the respondents that the mere fact of change of ownership of land did not vest the original application with its concurrent rights including the right of appeal in the new owner Mun Wha.
Some detailed attention has been paid to this and associated questions in the Court of Appeal. In Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382 Williams JA in referring to the operation of the Integrated Planning Act 1997 said:
“Schedule 10 of the Integrated Planning Act 1997 (the Act) provides separate definitions of applicant for purposes of chapter 3 and chapter 4 of the Act. For chapter 3 applicant means “the applicant for a development application.” … The definition for purposes of chapter 4 operates so that the term applicant includes “the person in whom the benefit of the application vests.” … The difference in the definition of “applicant” recognises that the applicant for a development application may be someone other than the person who is ultimately to benefit from the granting of an approval; often such application is made by a town planner on behalf of the proposed developer. But when it comes to appeal proceedings it is the proposed developer who would ordinarily be the party in the proceedings. The benefit of the approval would vest in the proposed developer pursuant to some arrangement between the original applicant and the developer. … As Keane JA points out the act is silent as to how the approval vests for purposes of chapter 4. If there is to be a vesting of the benefit of the approval then that must result from some transaction between the original applicant and the person in whom the benefit of the approval vests. (emphasis added)”
As Keane JA said:
“the IPA does not provide any mechanism for the substitution of a person in place of the applicant on the fact of the original application. The IPA does not expressly concern itself in any way with the processes whereby the benefit of an application may vest in a person who becomes the applicant as a result of that vesting. The IPA thus envisages that the vesting of the benefit of an application may occur as a result of dealings between persons outside the processes of the IPA. It is to the general law rather than the provisions of the IPA that one must look to determine whether as between the person identified in the application as “the applicant” and some other person, the latter is to be regarded as enjoying the benefit of the application.”
His Honour continued this theme later in the judgment as follows:
“It may readily be accepted that the concept of an applicant for the purposes of chapter 4 of the IPA may include, from time to time a person other than the original applicant for a development application under chapter 3. The case where a development application is initiated by a town planner on behalf of a client, but pursued on appeal by the client is an obvious example. But the statute does not expressly provide that a land owner who may ultimately have the benefit of an application is, ipso facto, a person whom the benefit of the application vests. Moreover, the statute does not suggest that such a landowner becomes “the person in whom the benefit of the application vests to the exclusion of the original applicant”. As I have noted, the IPA does not expressly concern itself at all with how such a vesting may occur. In the absence of any express indication that the IPA is at all concerned with how such a vesting might be effected, it would be surprising if a provision of the statute impliedly effected such a vesting. It would be all the more surprising because such a result would also involve an implied divesting of the benefit of the application from applicant who, on this understanding, has not consented to that divesting.”
In this case it was argued by the appellant’s counsel that a constructive trust had been created by virtue of both sale of the land and sale of the business from Fedwood to Mun Wha. This, it was argued was the very type of relationship referred to by Keane J providing Mun Wha with the appropriate standing as “applicant” as contemplated by IPA chapter 4.
In this context it is helpful to recall further analysis of this type of situation by Keane J in Sushames[1]. His Honour said:
“It should also be emphasised that an application for a development approval contemplated by the IPA is one coherent proposal which is put forward as such and is to be assessed as such. That application is, necessarily, directed by an applicant. When the IPA speaks of “the applicant” as “the person in whom the benefit of the application vests”, it is referring to the person or group who, at the time of the appeal, is exclusively entitled to control the application as the person with the beneficial interest in the application for the development permit. Importantly the provisions of the IPA do not envisage a multiplicity of such applicants at any one time.”
[1] See above.
Deane J at 620 analysed the principles relating to constructive trusts in this way in Muschinski v Dodds 160 CLR 583:
“Those circumstances can be more precisely defined by saying that the principle operates in a case where the sub stratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided but that other parties should so enjoy it. The content of the principle is that in such a case equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.” (emphasis added)
I note that both the sale of land contract and from what is in evidence in relation to the sale of the business, both are traditional and unexceptional arrangements between the parties.
Counsel for the appellant relied particularly upon statements of principle concerning constructive trusts in Muschinski. Deane J said at 614:
“The constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.”
I am satisfied that nothing in the relationship or dealing between the parties by the time of filing of the first Notice of Appeal on 21 September 2007 created a constructive trust or any other relevant legal-relationship which made Mun Wha an applicant for the purpose of having standing to appeal as contemplated by chapter 4 of I.P.A.
In the event I find the first Notice of Appeal by Mun Wha to be invalid.
Issues relating to change of “applicant” and the process of seeking an extension of time – the Second Appeal
The assignment of rights in relation to the application would have been uncontentious had that occurred prior to the expiration of the original period of appeal, that is, by 21 September 2007. Furthermore IPA contemplates that there are circumstances in which an application for extension of time may be properly made.
Authorities relevant to matters litigated in this application
In this case the primary issues appear to be what if any “rights” were assigned by the deed of assignment executed on 23 October 2007, and if such assignment included a right to appeal, are there “sufficient grounds” (s 4.1.55 of IPA) for an extension of time.
It is tolerably clear from decisions both of this Court and the Court of Appeal that mere ownership of property will not of itself provide proper standing for a new owner to continue proceedings initiated by a former applicant for development approval. [See for example Sushames v Pine Rivers Shire Council [2006] QPELR 188 per Rackemann DCJ and Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382 per Keane JA.]
Schedule 10 includes a definition of applicant which has an extended meaning of “the person in whom the benefit of the application vests”.
Section 4.1.27(2) makes a requirement that the appeal must be started within 20 business days after the day the decision notice is given to the applicant. An argument as I apprehend it, advanced by the respondents is that the appeal period having expired, there was no “benefit” which could have been transferred to the present applicant by virtue of the deed of assignment on 23 October 2007, the appeal period having expired in September 2007.
Although this submission is superficially attractive it is ultimately, I think, misconceived. The deed of assignment in combination with the provisions of s 4.1.55 relating to extension of time, upon analysis, disclose that there are two quite distinct issues to be considered. It is not the case, in my opinion, that the deed of assignment could have had the effect of conferring a benefit which is to “appeal out of time”.
However the deed of assignment by its terms in my opinion did operate to confer all benefits relating to the original application and this includes, in my opinion, the right to appeal.[2] This approach is in conformity, in my view, with recent authority (see Ogle v Pine River Shire Council & Ors 2008 QCA 232).
[2] See Sushames (supra).
The expiration of time to appeal does not have the effect of making nugatory the fact that a development application had been made nor does that lapse negate any rights and benefits of that application and included a general right of appeal as contemplated by s 4.1.27.
The deed of assignment of 23 October operated in my opinion to transfer all benefits of the original application including the right to appeal although the appeal period however had expired.
Sufficient Grounds Issue
The correlative question then is whether the applicant in this appeal has demonstrated that there are sufficient grounds for allowing an extension of time.
The word “sufficient” includes these meanings in the Concise Oxford Dictionary: adequate in amount, … need; enough.
In this Court the notion of what constitutes “sufficient grounds” received attention in Robertson & Anor v Brisbane City Council & Ors [2005] QPELR 166 at 169. Newton DCJ said:
“As to what constitutes “sufficient ground” in a case of this nature, assistance may be had from the judgment of Branson J in the Federal Court of Australia in Lindsay v Rose, Registrar of the Immigration Review Tribunal & Anor 44 A.L.D 570 at 578 where guiding principles distilled by Wilcox J from earlier decisions of Judges of the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 F.C.R. 344 at 348-50; 7 A.L.D. 315 at 320-1 were considered:
· The prima facie rule is that proceedings commenced outside the ‘prescribed period’ will not be entertained: Lucic v Nolan (1982) A45 A.L.R. 411 at 416. It is a pre-condition to the exercise of discretion in his favour that an applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.
· Action taken by an applicant other than by lodging an appeal, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the other parties aware that he contests the finality of the decision, and a case where the other parties were allowed to believe that the matter has finally concluded.
· Any prejudice to a Respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
· However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
· The merits of the substantive appeal are properly to be taken into account in considering whether an extension of time should be granted.
· Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the matter of exercise of the Court’s discretion.”The applicant argues a variety of factors which collectively should be regarded as sufficiency of grounds in allowing the extension of time. These essentially are as follows:
· The appellant has an obvious interest in the proceedings, both at law and has also demonstrated an interest in pursuing the appeal by instituting an appeal on 21 September 2007 (2677 of 07).
· From that time any interested party knew of the appellant’s interest in pursuing the appeal.
· The explanation for the delay in instituting the second appeal is that the appellant relied upon its consultants and legal advisors to advance its interests in relation to the first appeal, which is now argued by the respondents to disclose a lack of standing by the appellant in appeal 2677 of 07.
· The instigation of the second appeal in November 2007 (3367 of 07) was intended to circumvent the alleged deficiency in relation to appeal 2677 of 07.
· There is no argument advanced that the appeal itself is without merit, frivolous or vexatious or otherwise unmeritorious.
· No prejudice to any party because of the lateness of appeal 3367 of 07.
An appeal against of the decision given in relation to a development application by the very making of it, calls into question the certainty of that decision. The appeal therefore has tangible significance in the process of development applications and should not, I think, be regarded in a mere technical sense. The legislation itself (s 4.1.27) contemplates finality to the process by requiring that such appeal be made within 20 business days of the notification of the original decision. The legal and philosophical underpinning of this is clear. There must be certainty and finality in relation to development applications. The practical consequences of any uncertainty are obvious.
In this case, considering all those features to which reference has been made by the applicant, which are said to provide a basis for sufficient grounds being established, what really emerges is that although other parties knew of the interest in the present applicant pursuing an appeal, the “second” notice of appeal is an appeal instituted to overcome an alleged deficiency in the appeal process commenced on 21 September 2007 by appeal 2677 of 07.
There is, I consider, some general prejudice obvious in all this process. There was a period of approximately two months delay before the making of the second appeal. That is considerable time delay, although an explanation is offered. That explanation, I accept, suggests the delay was not deliberate but rather a failure to appreciate the relevant I.P.A. approval provisions, apparent from the course of the first (invalid) appeal.
Despite the initial flawed appeal process the appellant clearly enough evinced an intention to appeal at an early stage. This I consider adequately establishes sufficient grounds to extend time. In forming this view I have taken into account the other factors argued in favour of granting that extension together with what I consider to be the limited prejudice to other parties by reason of delay and lack of finality to the development application process. Should the first appeal have been valid, that factor would have weighed heavily against the balancing exercise in the consideration of the existence of sufficient grounds for extension of time to appeal.
In the event, I therefore consider that the applicant has demonstrated sufficient grounds for granting an extension of time, and the application is upheld. I give leave to extend time within which to appeal to 23 November 2007.
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