Riethmuller v Brisbane City Council

[2004] QPEC 63

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Riethmuller v Brisbane City Council & Anor [2004] QPEC 063
PARTIES:	PAUL ANTHONY RIETHMULLER Appellant v BRISBANE CITY COUNCIL Respondent And KEVIN HAYES ARCHITECTS Co-Respondent
FILE NO/S:	BD2211/04
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment, Brisbane
DELIVERED ON:	1 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2004
JUDGE:	Robin QC DCJ
ORDER:	Co-respondent’s application for striking out of “adverse submitter” appeal adjourned
CATCHWORDS:	Integrated Planning Act 1997 s 4.1.5A, s 4.1.23, s 4.1.28, s 4.1.55 – Co-respondent’s application to strike out “adverse submitter” appeal as incompetent – appellant’s submission against development application received one day late – notice of appeal filed late – assuming appellant not entitled to appeal as “submitter” because his was not a properly made submission, whether s 4.1.5A might save appellant – whether s4.1.55 might save a late appeal
COUNSEL:	No appearance by or for appellant Mr T Trotter for respondent Mr P Favell for co-respondent
SOLICITORS:	Brisbane City Legal Practice for respondent Co-respondent self-represented

1. The following are the Court’s reasons for adjourning the hearing of an application to strike out an appeal as incompetent, which hearing a Judge had directed take place on 27 October 2004; they incorporate a description of views provisionally reached on that day.

1. The appellant represents himself in an “adverse submitter” appeal which is in the following terms:

“Filed on:  21 June 2004
  Filed by:  Paul A. Riethmuller
  Service Address:        92 Waverley St, Annerley QLD 4103
  Phone:  [phone]

Paul Anthony Riethmuller of 92 Waverley Street Annerley appeals to the Planning and Environment Court at Brisbane against the decision of the respondent to approve the application by the co-respondent for a development permit for making a material change of use in respect of land situated at 102 Waverley Street, Annerley and described as Lot 80 on RP37801, Parish of Y’pilly and seeks the following orders or judgements:

The appeal be allowed;
             The application be refused; and

Such further or consequential orders as the Court considers appropriate.

The grounds of appeal are:

1.  Inadequate car parking provision.  The parking provided is not clearly visible from the street and one of the parking bays must double as a pathway to recycling bins.

2.  The proposal is for building of bulk and style that does not complement other residences in this Demolition Control Precinct.

3.  The approved Gross Floor area would exceed the permissible if the notice of realignment on this property were taken into account.

(Paul A. Riethmuller, Appellant)”

1. The development application was for a material change of use for multi-unit dwellings (5 units) and included demolition of an existing pre 1946 dwelling.  Contrary to the assertion contained in the first line quoted above, the Court’s stamp shows that the Notice of Appeal was filed on 22 June 2002.  The respondent and the co-respondent filed an Entry of Appearance on 28 June 2004 and 1 July 2004 respectively.

1. The next step was the co-respondent’s filing of an Application for Directions returnable “on the 20^th day of October 2004 at 9.15 am”.  It is doubtless attributable to the limited legal expertise of the co-respondent, who was acting in person at that stage that the application “Filed on behalf of the co-respondent”, proceeds, after indicating the directions sought:

“The grounds relied on are:

1.          The Appellant wishes the appeal to be heard and determined.

(Signature)
  ………………………………………

(Appellant/Solicitor/Agent)”

1. There was nothing in the application to indicate what persons were intended to be served with it, nor that orders might be made in the absence of parties affected.  Compare Form 9 under the UCPR.  Compare also r 25(2) of the Planning and Environment Court Rules; the form used, which is an “approved” one under r 29, could usefully be amended to include the note in the approved form of originating application, and to acknowledge that the applicant might be a respondent or co-respondent.

1. On 20 October 2004. there was no appearance by the appellant, as confirmed by the Associate’s endorsement on the order sheet.  There is no material on the file to show service of the application for directions on the appellant.  It is unclear what the Judge may have been told about such service.  The order initialled by the Judge, the best evidence and most perfect form of which is a draft order, document No 6 on the file, reads as follows:

“UPON HEARING Mr. Favell of Counsel for the Co-respondent, the Solicitors for the Respondent and the Appellant and reading the Application filed 7 October 2004, the Affidavit of David Wobcke filed on 19 October 2004.

IT IS ADJUDGED THAT:-

1.The Court is satisfied that there has been compliance with the provisions of Chapter 3, Part 4 (Public Notification) of the Integrated Planning Act 1997.

AND IT IS ORDERED THAT:-

2.That the hearing of an application that the appellant’s Notice of Appeal be struck out be on 27.10.04

3.That the parties exchange any affidavit material to be read on the application by 4 pm on 25.10.04”

1. The only notice to the appellant of the application to be heard on 27 October 2004  is deposed to in Mr Hayes’ affidavit sworn 21 October 2004 and filed the next day:-

“9.On 20 October 2004 I served a notice by Registered Post the Order in the Planning and Environment Court of 20 October 2004 on the Appellant, Mr. P.A. Riethmuller.”

1. The appellant did not appear when called on 27 October.  Telephone contact made by the respondent’s solicitor in the course of the hearing elicited information that he had been in the United States for a couple of weeks, and returned only on the immediately preceding weekend, also that he was aware there were some registered post items awaiting his collection at the Post Office.  He wished to be heard on the application, which was adjourned to 2.30pm on 1 November 2004, the earliest occasion suitable to all participants, given Mr Favell’s commitments on 28 and 29 October.  The sending of a copy of the draft order as notice to the appellant may be criticised.  An additional deficiency is that it makes no reference to a claim for costs which the co-respondent was desirous of pursuing.  Order 2, however, is quite clear; it complies with the requirement of r 25(1) of the Planning and Environment Court Rules.

1. While it may have been irresponsible of the appellant to absent himself from the country without making appropriate arrangements to permit his appeal to progress towards a hearing, from his point of view, the sudden increase in momentum in the appeal may be somewhat surprising.  He was not allowed much time to prepare for an application to have his appeal struck out.

1. The application for striking out of the Notice of Appeal is said to give rise to the same considerations as led to the ordering of such relief (accompanied by an order for costs, which had been expressly sought in the relevant application) in Hamill v Brisbane City Counciland Pretirement Resorts Pty Ltd [2004] QPEC 030. There, the appeal was plainly without merits, having been instituted as a vehicle to permit the appellants to ventilate frustration they felt regarding delays in processing or reviving an ancient application of their own regarding another site. The male appellant purported to have “very extensive professional planning experience”. Yet the appellants’ submission objecting to the developer’s proposal did not reach the Council until four weeks after the expiration of the period for making submissions. The lateness of the submission was held to preclude the appellants’ acquiring appeal rights. As appears in paragraph [4] of the reasons in Hamill:

“IPA s 4.1.28(1)(a) entitles a “submitter” for a development application to appeal to the Court against the giving of a development approval.  Under IPA Schedule 10 a “submitter” is “… a person who makes a properly made submission about the application”.  The phrase “properly made submission” is defined in Schedule 10 as a submission in writing, signed by each submitter and:

(b)… received on or before the last day of –

(i)if the submission is about a development application – the notification period; or …”

1. By s 3.4.9 of the Integrated Planning Act 1997:

“(2) The assessment manager must accept a submission if the
submission is a properly made submission.
(3) However, the assessment manager may accept a written
submission even if the submission is not a properly made
submission.”

1. In a way said to be reflected in the present situation, the Council appears to have accepted a late submission as a “properly made submission”.  That acceptance cannot change appeal rights which are conferred by statute.  See Hamill at [6] to [8]. I would have some difficulty in agreeing with Hamill if at [10] it constitutes a determination that s 4.1.5A is unavailable to relieve from the consequences of a submission being late in any circumstances. While the view is expressed in [10] that:

“The section operates against the background the non-compliance is not of the kind which goes to the standing of an appellant to institute an appeal and, rather, is plainly intended to enable the court, in appropriate circumstances, to excuse technical deficiencies in proceedings which have been properly brought …”,

as I read the section, it gives the court, in any proceeding before it, wide jurisdiction to grant indulgences where any requirement of the IPA or some other relevant Act has not been complied with (assuming the circumstances described in sub-s (1)(b) are established).  I cannot see why the jurisdiction would not extend to the case of a late submission, if the circumstances were sufficiently special.  I do not suggest for a moment that failure to comply with the time limit should be excused except in special circumstances.  I agree with the approach taken in Hamill that the matters to be considered may include the prospects of an appeal (the “proceeding”) succeeding.  They may also include any further default(s) by the party who or which has failed to satisfy IPA requirements. 

1. In this case, to all appearances, the Notice of Appeal has been filed late.  That is so even on the basis that the Council was correct in its calculation of dates in its communication of 18 May 2004 to Mr Riethmuller, which began:

“I acknowledge receipt of your submission to the proposed use of land described as Lot 80 on RP37801, Parish of Y’Pilly, situated at 102 Waverley St, Annerley Qld 4103, for Demolition & Multi-Unit Dwellings.

The proposal lodged by Kevin Hayes Architects, P O Box 28 New Farm Qld 4005, and your submission have received careful consideration and I have to advise that the Council, by its Delegate on 7 May 2004, determined to approve the application.  A copy of the Decision Notice in respect of that determination is enclosed for your reference.

You are entitled to lodge an appeal with the Planning and Environment Court against this decision.  The appeal must be lodged within a period of 20 business days after the day the Decision Notice is deemed to have been delivered to you.  The Council calculates the final day for lodgement of an appeal to be to 21 June 2004.”

1. Mr Favell’s argument was that the indicated date of 21 June 2004 should be disregarded:

“Even if the submission was a properly made submission the Notice of Appeal was filed out of time.  The mistaken Notice to Mr Riethmuller was sent on 18 May 2004.  Allowing two days for delivery by post in the ordinary course the date for filing an appeal (if an appeal could be made) was 17 June 2004.  There is no evidence to the contrary … even if the appeal was filed in time it is an invalid appeal because Mr Riethmuller was not a submitter who made a submission within the time allowed.”

1. Section 4.1.55 of the IPA would permit the Court to allow a longer time for institution of the appeal if “satisfied there are sufficient grounds for the extension.”  Once again, an indulgence of that kind should be granted only in a special case.  Life would become unacceptably difficult and confusing if people could not proceed on the assumption that a decision could be treated as final once an appeal period expired without an appeal’s being commenced.  No doubt exceptional circumstances will arise from time to time.

1. In the present case I think the appellant has a far more difficult argument to make for an extension from 21 June 2004 to 22 June 2004 then for an extension (if any be necessary) to 21 June 2004, the date indicated by the Council. The communication stating that date is effectively in the same form as a similar one sent to the Hamills, which arose from the same oversight of treating a late (or apparently late) submission as a “properly made submission”. Practical considerations make it essential that ordinary members of the public are entitled to rely on indications of time limits for appeals emanating from such a responsible authority as a local government. (The considerations respecting an erroneous intimation that there is a right of appeal may or may not be similar. It might be difficult to regard an appeal instituted in accordance with such a communication as in any way a breach of process so as to justify visiting a costs order upon the appellant, contrary to the usual rule in s 4.1.23.) There is inevitably going to be some guesswork in estimating times taken for the course of post, and one would expect local governments to be conservative here, in order to allow recipients of communications the full 20 business days within which to consider whether or not to appeal. I would think that in the ordinary run of things, an appellant needing an extension of time under s 4.1.55, who had complied with a date nominated by the local government, would be granted the extension. Here, as one would expect, the co-respondent received a corresponding communication. It would be open to any such co-respondent to raise the issue if it seemed those who had put in adverse submissions in vain were being offered too long a time within which to appeal. Correcting notices could be sent out if necessary. It may be thought wiser for local governments to eschew giving precise advice about dates. However, my view, speaking generally, is that it is better to err on the side of giving more pertinent helpful information rather than give less. A letter is likely to be more informative to a recipient than a long extract from the IPA.  One would hope it never becomes the rule for local governments to qualify communications of the kind in question by disclaimers warning that they should not be relied on, and that recipients should take independent advice.

1. As things appeared on 27 October 2004, I was inclined to accede to the co-respondent’s application to dismiss the appeal, as an incompetent proceeding.  The basis for doing so was canvassed at length in Hamill.  Reference was made to the former Local Government Court’s dismissal of an appeal as incompetent in City and Country Supermarkets Ltd v Redcliffe City Council (1983) QPELR 360. A sufficient ground for doing so is that the appeal appears to have been instituted too late. There was no application, nor any evidence invoking s 4.1.55. As to the alternative ground, the one principally relied on by the respondent and co-respondent, that appears to be supported by Hamill. Again, there is neither any application nor any evidence invoking s 4.1.5A which, in my view, is potentially available to save the situation for the appellant, by treating him as having put in a “properly made submission”.

1. The coincidence of two instances of his being a day late I found very troubling on 27 October. There is no comparison with the Hamills’ delay, compounded when their appeal was not filed until 13 days after expiration of the deadline indicated by the Council’s letter. On the basis that “lightning rarely strikes twice”, I felt comfortable about proceeding to dismiss the appeal, as it seemed highly unlikely that the necessary relief under both s 4.1.5A and s 4.1.55 would be granted. The theoretical possibility must be acknowledged that the appellant’s dates on both his submission (11 December 2003 – see Exhibit C to the Affidavit of Heath Vogler) and his Notice of Appeal were correct and that the dates stamped in the Council and in the court registry (the day following in each case) are not. The slight chances of the relevant officers in both places getting it wrong did not dissuade me. However, once the Council’s solicitors made telephone contact with Mr Riethmuller and ascertained his wish to be heard on the application, it became impossible to proceed until he could be present, after having a reasonable opportunity to prepare his case. He indicated 48 hours would be required.