Northern Property Syndicates Ltd –v- Thuringowa City Council & Ors

[2006] QPEC 8

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Northern Property Syndicates Ltd –v- Thuringowa City Council & Ors [2006] QPEC 008

 PARTIES:

NORTHERN PROPERTY SYDICATES LTD ACN 082 453 987             Appellant

Against

THURINGOWA CITY COUNCIL

 Respondent

And

THE AVENUES TOWNSVILLE PTY LTD ACN 105 304 434

 Co-respondent

FILE NO:

297/05

PROCEEDINGS     

Application for  extension of time

DELIVERED ON:

23 January 2006

DELIVERED AT:

Townsville

HEARING DATE:

23 January 2006

JUDGE:

CF Wall QC

ORDERS:

Application granted.

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – Town planning Practice – application for extension of time to serve written notice of appeal on other parties – factors supporting extension of time

Legislation referred to:
Integrated Planning Act 1997 ss.4.1.41(1)(a)(i), 4.1.41(1)(b)(iii), 4.1.41(2)(b), 4.1.55

COUNSEL:

Mr M Smith (sol) for the Appellant
Mr R Quirk for the Respondent

Mrs SM Lindsay (sol) for the  Co-respondent

SOLICITORS:

Boulton Cleary & Kern Solicitors for the Appellant
MacDonells Solicitors for the Respondent
Ruddy, Tomlins & Baxter as Town Agents for Hickey Lawyers for the Co-respondent

HIS HONOUR: This is an application by Northern Property Syndicates Limited under section 4.1.55 of the Integrated Planning Act for an extension of time to take the action which the applicant was required to take under 4.1.41(1)(a)(i) and (b)(iii) within the time referred to in section 4.1.41(2)(b). The applicant failed within the required two business days after the appeal was started to give written notice of the appeal to the chief executive of the Department of Local Government and Planning and the chief executive of the Main Roads Department.

The notice of appeal was filed on the 15th of August 2005.  Written notice of the appeal was given to the two chief executives on the 2nd of September 2005.  This was after the solicitors for the respondent inquired of the solicitors for the appellant whether such notice had been given.  The reason advanced for not giving the required notice within two business days after the appeal was started is that the solicitor having the carriage of the matter on behalf of the appellant was personally unaware of the time requirements prescribed by section 4.1.41.  As soon as he became aware he gave the required notice.

Whilst this is an explanation it could not in objective terms be said to be a particularly satisfactory explanation, the following factors persuade me that notwithstanding this the application should be granted:

1. The chief executive of the Department of Local Government and Planning has indicated that he does not propose to elect to join the appeal as a

co-respondent and would not have done so had he been served within time.

2.The same applies to the chief executive of the Department of Main Roads.

3.The appellant itself has not been at fault and has reasonably relied upon its solicitors to comply with all statutory requirements.

4.Ms Lindsay for the co-respondent frankly concedes that no prejudice would accrue to the co-respondent were the application granted.

5.Ms Lindsay also concedes that the appeal is not frivolous or without merit and that there is substance in it.  That concession is not though to be taken as meaning that the co-respondent concedes that the appeal is likely to succeed.

6.        The respondent consents to the application. 

7.   The appeal is listed for hearing on the 20th of February 2006 subject of course to this application being disposed of in a way satisfactory to the appellant.

In all of the circumstances I think that the material indicates that non-compliance with section 4.1.41 in the respects referred to has not substantially restricted the rights of the co-respondent, especially in circumstances where had the provisions of 4.1.41 been complied with the respective chief executives would not have elected to become
co-respondents to the appeal.  In those circumstances nothing really flows from the appellant's non-compliance with section 4.1.41 and I think it appropriate to grant the extension sought by the appellant. 

I therefore order under section 4.1.55 of the Integrated Planning Act that the date for giving written notice of the appeal under section 4.1.41 to the chief executive of the Department of Local Government and Planning and the chief executive of the Department of Main Roads be extended until 4.30 p.m. on the 7th of September 2005.

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