Robertson v Brisbane City Council

[2003] QPEC 77

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Robertson & Anor v Brisbane City Council & Ors [2003] QPEC 077
PARTIES:	WENDY-ANNE ROBERTSON and WILLIAM YUILL CONNER

Appellants

v

BRISBANE CITY COUNCIL

Respondent

and

ALAN LEE and G LEE

Co-respondents

FILE NO/S:	3334/2003
PROCEEDING:	Applications
ORIGINATING	Planning & Environment Court
COURT:	Brisbane
DELIVERED ON:	19 December 2003
DELIVERED AT:	Southport
HEARING DATE:	5 December 2003
JUDGE:	Newton DCJ
ORDER:	Application for extension of time refused. Application to strike out appeal allowed.
CATCHWORDS:	LOCAL GOVERNMENT – TOWN PLANNING – appeal against decision to approve (subject to conditions) an application for a development permit for a material change of use to facilitate the development of a multi-unit dwelling
LOCAL GOVERNMENT – TOWN PLANNING – STATUTES – INTERPRETATION – application for extension of time to serve notice of appeal – application to have appeal struck out – s 4.1.55 Integrated Planning Act 1997 – whether sufficient cause to extend time has been shown
Integrated Planning Act 1997 Cases considered:
H & J Soyka v Hervey Bay City Council & Anor Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Lindsay v Rose, Registrar of The Immigration Review Tribunal & Anor 44 ALD 570 Lucic v Nolan (1982) 45 ALR 411
COUNSEL:	Mr S Ure – Appellants Mr M E Rackemann – Respondent Mr C L Hughes SC – Co-respondents
SOLICITORS:	King & Company – Appellants Brisbane City Legal Practice – Respondent Connor O’Meara – Co-respondents

1. These two applications were, by consent, heard together. The first, brought by the co-respondents, seeks an order that the appeal be struck out with costs. The second, brought by the appellants, seeks an order that the time allowed for the appellants to give written notice of the appeal to other parties be extended until 27 November 2003.

2. The subject of these applications is an appeal against the decision of the respondent Council, made on 12 August 2003 approving (subject to conditions) an application for a development permit for a material change of use to facilitate the development of a multi-unit dwelling (3 units) on land described as Lots 14, 41-42 on RP 19619, Parish of Enoggera, situated at 29 Mort Street, Paddington.

3. An agreed chronology of events reveals that a notice of appeal was filed on 6 October 2003, this date being the last day of the 20 business days allowed under s 4.1.28 of the Integrated Planning Act 1997 (IPA). The last day for the appeal to be served was 20 October 2003 (s 4.1.41 of IPA). The co-respondents became aware of the submitter appeal on 19 November 2003 and filed an application to strike it out on 25 November 2003. On 27 November 2003 the appeal was formally served on the solicitors for the co-respondents. On 28 November 2003 the submitter appellants filed an application to enlarge the time for service of the appeal.

4. The chronology, accordingly, shows that the notice of appeal was not served for more than six weeks after the period of 10 business days during which it should have been although the co-respondents became aware of the appeal four weeks after that period.

5. The evidence of the male appellant (Mr Conner) was that on or about 5 September 2003 he received correspondence from the respondent Council advising that it had, by its delegate, determined to approve the application for a development permit for a material change of use on 12 August 2003 and that he was entitled to lodge an appeal with the Planning and Environment Court against this decision by 6 October 2003. The letter also enclosed extracts from IPA to assist him in exercising his entitlements in relation to an appeal.

6. Mr Conner claimed that in perusing the letter and extracts from IPA, he was unable to ascertain what he was required to do in order to properly exercise his entitlements in relation to the appeal because:

   a) he did not fully understand the meaning of “appellant”, “chief

   executive”, “advice agency”, “concurrence agency” or “impact
   assessment”, all of which are contained in the IPA extracts;

b) he accordingly did not appreciate that he was an “appellant”;

c) with regard to s 4.1.28 of IPA as provided, he did not know

whether the application had been processed under s 6.1.28(2) as he had not
been provided with a copy of that section;

d) with regard to s 4.1.39 of IPA as provided, he did not know what

the rules of court applying to the appeal required as he had not been
provided with a copy of them;

e) notwithstanding this, he did note from s 4.1.39 that the court could

still hear and decide an appeal even if the rules had not been complied
with;

f) he knew from the letter received from the respondent that he was entitled to lodge an appeal with the court by 6 October 2003;

g)	there was nothing in the letter saying that he had to do anything
else;
h)	he noted from s 4.1.39 of IPA as provided, how an appeal was

lodged; and

i)           he did not appreciate that other things had to be done in addition to

this.

1. Mr Conner stated that once he had taken steps to file the appeal as advised, he thought he had done all he was required to do under the provisions of IPA. On or about 20 November 2003 he received correspondence from the respondent enclosing, by way of service, a copy of an entry of appearance to the appeal. On 26 November he received a letter from the co-respondents’ solicitors enclosing by way of service a copy of an entry of appearance to the appeal. He immediately sought legal advice about this letter, and on 27 November 2003 he spoke with a solicitor and provided instructions to notify the other parties of the appeal in accordance with the provisions of IPA.

2. It is of relevance to note that Mr Conner is not opposed to development proceeding on the subject site, but wishes only to ensure that development is carried out in accordance with the Brisbane City Plan, in particular the Latrobe and Given Terraces Local Plan. Mr Conner’s concern is that the proposed development is in keeping with the character of the area and that it does not present as a “flat-roofed and monolithic walled structure, devoid of any architectural interest or feature”.

3. In cross-examination Mr Conner was asked by Senior Counsel for the co- respondents why, if he was so confused about the legislation and what he had to do, he did not seek legal advice at the time he was going to lodge the appeal. He replied that:

   “…when I telephoned them [the respondent Council] I asked how was the court structured. My advice was that it was actually a fairly low-key affair in the first instance and that the main thing was to get the appeal to the Registrar of the Court, which is what I did.

   … we understood that we had done all that was required by us. In fact [we] had discussed the fact that I wonder when we will receive notice of the appeal to be heard. So we were waiting on something coming from the court.”

4. The evidence discloses that Mr Conner has had previous involvement in court proceedings having commenced an action for personal injuries in 1997. The female appellant claimed to have no understanding of the provisions or requirements of the relevant legislation and only a limited understanding of the development process. Both appellants are business people engaged in the importing and retailing of oriental rugs.

5. The co-respondents complain of having suffered prejudice in terms of their exposure during the relevant period (i.e. between the last day for service of the appeal and the date at which they became aware of the appeal).

6. Mr Nicholson, a registered builder, had been engaged by Dr Alan Lee (one of the co-respondents) to work on the proposed development. His evidence was that during October 2003 he was informed by Dr Lee that work on the project could start as the application had been approved and no appeals had been commenced. It was his intention to start building works in late January 2004. Mr Nicholson stated that he then:

a)	did the “take-off” for the material;
b)	placed the orders for the material;
c)	met with the architects and surveyors;
d)	did detailed site investigations; and
e)	checked the plans from a builder’s perspective.

1. When informed by Dr Lee that work on the project could not proceed as an appeal had been lodged against the development approval, Mr Nicholson wrote to Dr Lee outlining the work carried out to date and estimating expenses incurred. The letter, in part, said:

   “So far with ordering material and time spent organising this project we will have spent approximate $60,000 to date. As we have a contract in place with you for this construction work and the project does not go ahead we will expect to be reimbursed for this amount.”

2. Subsequently, Mr Nicholson stated that of the amount referred to in the letter, $40,000 related to costs for building materials ordered. However, he appreciated that he may be able to cancel some or all of the orders without incurring penalty. In fact, in his oral testimony Mr Nicholson confirmed that he had been able to cancel all of the orders without penalty. He also conceded that if the proposal proceeded with a pitched roof and overhangs to the western elevation windows any take-off that had been done would not be wasted, nor would any meetings that had taken place with architects and surveyors be wasted. Similarly, the site investigation and checking of plans would not be wasted. Mr Nicholson, however, expects to be reimbursed for between one and two weeks’ work involved in attending to the matters identified previously.

3. Mr Christopher Lee is a principal of Design Buro, an architectural firm. He is also the son of Dr Alan Lee. Mr Lee’s firm was commissioned by Dr Lee to prepare plans for the development. Works completed between 14 October 2003 and 19 November 2003 include the development of planning application drawings to construction working drawings upon which the main contractor would finalise the contract sum and which would in due course be submitted to obtain building approval for the design. Several meetings with the site architect were also held to discuss the design and details of the proposal, and design development was generally undertaken in respect of the two proposed dwellings. During the week commencing 27 October 2003 a set of drawings, defined as Detailed Proposals, were issued. From this point the final designs for the proposed dwellings were developed in liaison with structural and civil engineers and compliance with the Building Code of Australia was checked. Product information and outline specifications were developed. From 10 November 2003 the construction details and product specifications of the two proposed dwellings were developed in order to enable a building application to be submitted during the week commencing 24 November 2003.

4. Dr Lee testified that he resigned from his position with the Royal Brisbane Hospital where he worked one day a week as a gynaecologist. His resignation is to become effective as of midnight on 31 December 2003. However, in cross- examination by Counsel for the appellants, Dr Lee appeared to concede that his decision to retire was made approximately one week before he could have formed the view that no appeals had been lodged in relation to the proposed development. He also conceded that no written contract existed for the construction of the proposed residences.

5. I accept that each of the witnesses who testified gave truthful evidence and, generally, reliable evidence to the best of their ability. However, it was somewhat disappointing that Mr Nicholson had not thought it necessary to bring to court his work diary, the contents of which, it seems, would have assisted significantly in relating times (and therefore costs) involved in performing various tasks. It was also regrettable that no evidence was forthcoming from Mr Lee or those associated with his firm as to costings flowing from work performed during the period from 14 October 2003 to 19 November 2003 which would be wasted as a result of the appellants’ conduct.

6. From the evidence placed before the court I can only conclude that the co- respondents have suffered some prejudice in terms of their exposure between the last day for service of the appeal and when they became aware of it. Such prejudice is not capable, on the evidence, of precise (or even approximate) calculation. Given the relatively minor changes sought by the appellants to the proposed development (which may involve the substitution of a pitched roof for the flat roof approved and the addition of overhangs for windows on the western elevation), it seems unlikely in my view, that the financial prejudice flowing to the co-respondents would be considerable if the time for service of written notice of the appeal were to be extended.

7. On the other hand, it could not fairly be said that the prejudice to the co- respondents is likely to be insignificant should time be extended. The failure of the appellants to give notice of their appeal will undoubtedly involve the co- respondents in incurring unanticipated costs in respect of work performed by the builder and the firm of architects of whom Mr Lee is a principal. Such costs may be expected to total several thousand dollars. Unfortunately, I can make no more detailed or precise finding in this regard, because it is not known to what extent work already performed by the architects and builder would be incorporated in the final development should it include a pitched roof and window overhangs.

8. It is accepted by the parties that the single issue which will determine whether the period for service of the appeal should be enlarged or whether the appeal should be struck out, is whether the appellants can show “sufficient cause” within the meaning of s 4.1.55 of IPA which provides that:

   “s 4.1.55 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.”

9. As to what constitutes “sufficient grounds” 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 ALD 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 FCR 344 at 348-50; 7 ALD 315 at 320-1 were considered:

ƒ

the prima facie rule is that proceedings commenced outside the ‘prescribed period’ will not be entertained: Lucic v Nolan (1982) 45 ALR 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.

ƒ

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.

ƒ 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.

ƒ	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.
ƒ	the merits of the substantive appeal are properly to be taken into account in considering whether an extension of time should be granted.

ƒ considerations of fairness as between the applicant and other persons

otherwise in a like position are relevant to the manner of exercise of the
court’s discretion.

1. The importance of applying the principles referred to above in cases involving an application for extension of time pursuant to s 4.1.55 of IPA was recognised by Quirk DCJ in H & J Soyka v Hervey Bay City Council & Anor (unreported decision delivered on 30 October 2002). His Honour also in that case considered it relevant to the question of prejudice whether the hearing of the appeal could be expedited.

2. The application of the relevant principles to the circumstances of this case is neither simple nor straightforward. In considering whether an acceptable explanation of the delay has been shown by the appellants, it is appropriate to bear in mind that Mr Conner acted upon advice from an officer of the respondent Council in lodging an appeal with the court. No advice was forthcoming as to his obligation to serve notice of the appeal upon other parties.

3. Whether it is reasonable for a person in the position of Mr Conner to take no steps whatsoever to draw the appeal to the attention of the other parties will depend on a number of factors including the degree of knowledge and experience of legal matters possessed by an appellant and the reasonableness of the failure by such person to take timely professional advice. In this case Mr Conner believed or assumed the court would notify the other parties, and points to his relative lack of sophistication in legal and development matters. I accept that the appellants were not experienced in litigation (despite Mr Conner’s previous personal injuries action) and had at best, limited knowledge of development law generally and of relevant statutory provisions in IPA which is a complex piece of legislation.

4. On the other hand, this degree of inexperience may reasonably be regarded as a factor which would be expected to lead persons such as the appellants to seek professional advice from a town planner or a solicitor. The appellants, according to the evidence of Ms Robertson have, in respect of a previous proposal, used the services of a town planning consultant to lodge a submission against a development. They are, therefore, persons who were, at the relevant time, aware of the assistance that could be obtained from a town planner and indeed of the identity of such a consultant.

5. It is also of relevance that Mr Conner had engaged solicitors in respect of his earlier action and, presumably, well knew that their advice could be obtained regarding this appeal. He also had assistance from a town planner in preparing his submitter’s objection to the proposal. The level of sophistication of the appellants in legal and development matters does not, in my view, warrant the extension of a great deal of latitude in considering whether they have demonstrated an acceptable explanation of the delay. Particularly is this so when the period of delay is considered.

6. The notice of appeal was not formally served for almost six weeks after the 10 day statutory period, although the co-respondents had become aware of the existence of the appeal after approximately one month through the diligence of the respondent Council which had searched the court files. It is not the case that the appellants were misled by erroneous advice from a Council officer. At worst the advice Mr Conner received may have been incomplete in that he was not told to ensure that copies of the notice of appeal were served on the respondent and co- respondents. However, the Council cannot be held to have assumed the role of professional adviser to the appellants. An enquiry made of a Council officer on an information telephone line, rather than of the officer nominated (together with his telephone number) in the Council’s letter of notification of the decision notice dated 4 September 2003 does not, in my opinion, form the basis of an acceptable explanation of the substantial period of delay in this case. I am unable to conclude that it is fair and equitable in these circumstances to extend time.

1. Both the respondent Council and the co-respondents were allowed to believe for a period of approximately one month following the last day for notice of the appeal to be served that the matter was finally concluded in that the development proposal had been approved (subject to conditions) and that no notice of an appeal had been served on them.

2. There is prejudice to the co-respondents in terms of both financial (albeit unquantified) costs and delay. This is a material factor which militates against the grant of an extension of time. Furthermore, should the application be granted, a delay is likely to result in the unsettling of the architects and builder who will be obliged to look to the co-respondents for redress. Notwithstanding the failure of Mr Nicholson and Mr Lee to precisely identify and cost the work performed by them during the relevant period, it is likely that the costs associated with this work will not be insubstantial.

3. As to the merits of the substantive appeal, all that can be said is that there is insufficient material before the court to enable an informed assessment in this regard to be made. Certainly, the appellants seek what appear to be only modest alterations to the approved design. However, whether even these changes are warranted in terms of the relevant town plan and local area plan cannot be determined at this stage.

4. Considerations of fairness between the appellants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion. However, such considerations in this case do not call for time to be extended.

5. For these reasons, I conclude that the appellants have failed to demonstrate that sufficient grounds exist to warrant an extension of time to 27 November 2003 to give written notice of the appeal. The application to enlarge time is therefore dismissed. The application of the co-respondents to strike out the notice of appeal is allowed.

6. I will hear any submissions in relation to costs in due course. The orders made on 5 December 2003 by way of directions as to the appeal are to be vacated.

   - - - - -