Riethmuller v Brisbane City Council

[2004] QPEC 64

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

[2004] QPEC 064

No 2211 of 2004

PAUL ANTHONY RIETHMULLER	Applicant
and
BRISBANE CITY COUNCIL	Respondent

and

KEVIN HAYES ARCHITECTS Co-Respondent

BRISBANE

..DATE 01/11/2004

JUDGMENT

CATCHWORDS: Integrated Planning Act 1997 s 3.5.15, s 4.1.5A adverse submitter appeal - appellant's submission against proposed development treated as a "properly made submission" where it was slipped under the Council's closed door before 5 p.m. on the last day for submissions - appeal could not be struck out as out of time - appeal period did not commence to run because omission of conditions of approval meant the submitter had not been given a copy of the "decision notice".

HIS HONOUR: I will direct the Registrar or my Associate to post a copy of the Notice of Appeal to the Chief Executive, Department of Local Government and Planning, Mineral House, 41

George Street, Brisbane 4000 within 24 hours.

The principal issues in the appeal are to be those set out in
the Notice of Appeal.
01112004 D.2 T7/SDH (Robin DCJ)

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Any request for particulars is to be made by the 5th of

November 2004.

Disclosure is to take place by the 8th of November 2004.

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Particulars are to be supplied as requested by the 10th of exchanged by the 12th of November 2004.

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I direct that a meeting of the parties with a view to
resolving all or some issues, to which the parties may
bring legal representatives and any expert, take place by the

13th of November 2004.

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I direct that any further issues be notified by the appellant of November 2004 in the hope that the matter may be set down in the December pool. I am not sure if it is necessary to grant liberty to apply. Is it usually? I will do it anyway. If anything goes wrong it can come back to the Judge.	40
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no later than the 8th of November 2004 with any request for
particulars of them to be made by the 10th of November 2004
and those particulars last referred to to be supplied by the
12th of November 2004. (Of course, if there are further
issues raised, that will trigger obligations to make
appropriate disclosure forthwith.)

Costs of 27th of October 2004 and today reserved.
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I will give some brief further reasons. The Court has just given directions to facilitate the hearing of this appeal, perhaps unusual, in the sense that there may be two streams of issues against the possibility that the still self-represented appellant wishes to raise further issues once he has obtained legal advice. The further issues will be the subject of an expedited timetable so that the two streams are brought into harmony.	10
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I will publish now to the parties some reasons which I prepared, explaining the Court's views as matters stood on the 27th of October this year when Mr Riethmuller was not present. The matter was adjourned till this afternoon, when not only he could be present but also the other parties and their legal representatives. The reasons I have published acknowledge the possibility of Mr Riethmuller's appeal being struck out as incompetent, either because his submission against the co-respondent's development application went into the Council a day late, or on the basis that his appeal to this Court was filed late. My feeling was that, while indulgences were potentially available to Mr Riethmuller independently to overcome each of those difficulties, it would have been highly unlikely and the possibility could be disregarded that he would show an entitlement on the merits to both of those indulgences.	30
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The situation has changed today. There is affidavit evidence
from Mr Riethmuller to the effect that he attended at the

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01112004 D.2 T8/SDH (Robin DCJ)

Council's administration building on the 11th of December 2003	1
between hours of 4.45 p.m. and 5 p.m. attempting to lodge his submission by hand. He found the premises locked and failed to attract the attention of staff inside in circumstances which gave him the impression that he was being "purposely ignored".	10
He was able to slip his submission under the glass door of the public entry area. In the circumstances, the Council, unsurprisingly, stamped the submission as received on the day following, which was the 12th of December 2003, and too late. Mr Trotter, appearing for the Council, tells the Court that the Council is unable to contest what Mr Riethmuller says, and the Court accepts it. I think it's still the case that	20
citizens assume that offices such as this one, where Mr
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Riethmuller was attempting to lodge a submission, will be open until 5 p.m., although increasingly entities, both public and private, seem to be adopting earlier closing times. Mr Riethmuller is aware of City Council offices in other parts of the city on late night shopping days being open considerably
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later.
In the circumstances, the Court clearly ought to act under
section 4.1.5A of the IPA. This has the consequence, as the
published reasons indicate, that what may not have been a
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"properly made submission" is effectively turned into one.
I'm grateful to Mr Trotter for his reference to a case no one
was able to identify on the last occasion of Oakden
Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA

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1112004 D.2 T9/BLP (Robin DCJ)

470, 125 LGERA 256, in which a similar approach was taken by	1
the Court of Appeal in accordance with which it was open to a judge under the former section 4.1.53 to make an order which effectively turned into a "properly made application" an application which did not strictly comply, in that case because of the absence of an owner's consent to a development application.	10
So far as the appeal's being late is concerned, I would not have been inclined to make an order under section 4.1.55 to save the appeal on the basis that on the 21st of June 2004, which was the last date as indicated by official communication	20
dated 18 May 2004 from the Council, Mr Riethmuller once again got caught by the early closing of an office, in this case the Court Registry, which he had not anticipated. I accept from
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him that he had other difficulties, such as a pressing appointment at the orthodontist's which he had to get his daughter to, and which I'm sure could not have been readily rescheduled, and, more seriously, considerable difficulties in obtaining from the Council all of the "common material" which
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he needed to properly prepare his appeal.
I am inclined to think that the system depends on time limits of this kind being taken seriously. That strict approach, (which, I may say, I would have adhered to given my
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provisional view of the prospects of success of the appeal in
light of the relatively full information about it that's
emerged this afternoon) is an approach that has been rendered
inappropriate by the submission made by Mr Riethmuller under
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section 3.5.15 of the IPA that his appeal cannot be said to be	1
out of time, given that the time for appealing has not yet commenced to run. The reason for that is the Council's failure to give fully the "decision notice" as described in section 3.5.15. By subsection (2)(d), if, as was the case

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here, the development application is approved subject to
conditions, then a decision notice "must state... (i) the

conditions."

By subsection (3), where the application is approved, as it

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has been here, it's the assessment manager's obligation to
give "a copy of the decision notice" to each principal

submitter within the time allowed.

Oral evidence was given by Mr Riethmuller confirming what he said from the Bar table to the effect that all he received	30
from the Council was the letter set out at [13] in the reasons I have published and some details in a document marked Exhibit 1 headed, "Decision Notice Details", which seems to me not at
all to be a decision notice of the kind which was sent to the
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co-respondent on 7 May 2004 as per Exhibit F to Mr Vogler's affidavit.
Mr Trotter, for the Council, which has changed its stance considerably since 27 October, accepts that, shorn of the conditions, the decision notice does not give sufficient	50

information to a recipient to understand what has happened.
01112004 T10/SC (Robin DCJ) 6 60

Mr Riethmuller's surprise point seems to me correct. He says	1
it would justify the Court in striking out his appeal on the basis that there was still nothing to appeal against leaving him free in due course to institute a new appeal.

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This approach is quite unattractive to the Court. He now has the missing conditions, apparently, although I am in some doubt about that, given the difficulty that he referred to in respect of electronic downloading of documents he's paid the Council to supply. It seems that in some instances, at least,

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only one side of documents printed on both sides of sheets of

paper was made available to him.

There is absolutely no point that I can see in delaying things. The Court ought to be particularly conscious in a submitter appeal in respect of a development application which requires no relaxations of the standard requirements of the planning scheme of the desirability not to delay the co- respondent developers, particularly as they are not professional developers.	30
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The appeal ought to be allowed to proceed so that the parties, including Mr Riethmuller, are spared the cost of becoming involved in a new proceeding, and so that time is not lost.
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Mr Favell has, I think, rather faintly, pursued the original
application from last week, but has certainly not conceded that it had to fail. He has changed the costs application that was before the Court, so that it is now directed at the

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01112004 T10/SC (Robin DCJ)

Council whose apparent failures are now believed by his	1
clients to be the cause of the unsatisfactory state matters are now in.
He has placed further material before the Court today. Part of it is devoted to persuading the Court that Mr Riethmuller's appeal may be problematic so far as the merits are concerned,	10
but the merits are not the ultimate issue today, although, of course, they bear on what indulgences, if any, an appellant ought to be allowed. As it turns out, Mr Riethmuller does not
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need any beyond one which he ought to have relating to his original submission.
The co-respondent, it is established by the new material, has been careful to get all material served on Mr Riethmuller. It
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seems that communications by registered post, which were noted last time, was actually collected by Mr Riethmuller on the eve of the last hearing. I accept that he had not opened it or
them. One way and another, it was never drawn to his attention in the way that ideally it ought to have been what
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the precise terms and implications of the application he faced on the 27th of October actually were. This matter, it seems, confirms the fallibility of all of us in that there has been less than a perfect performance one way or another by all of the parties, and regrettably, I think, of the Court, given its
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inability to do more by way of providing the opportunity of allocation at this point of relatively early hearing dates.

Does that cover everything? Sorry to have kept you late.
MR FAVELL: Thank you, your Honour.
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HIS HONOUR: All right. Thank you.

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