Schodel v Brisbane City Council

[2011] QPEC 42

[2011] QPEC 42

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 31 of 2010 

PHILLIP JOHN SCHODEL	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 28/02/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 482(2), s 485(3), s 497 Planning and Environment Court Rules 2010 r 8(2) Uniform Civil Procedure Rules r 69

"Submitter appellant's application for extension of time to notify the developer "applicant" of appeal refused - only the Council (assessment

manger) had been made a party - "applicant" was an agent engaged  to seek an approval retrospectively for construction of a dwelling house already completed by its client - client had sold the property to third parties, all ignorant of the appeal - third parties applied to be joined in the appeal (which might lead to some demolition being required) if the appeal remained on foot - appeal dismissed.
HIS HONOUR:  The issues for the court today are whether the

appellant, Mr Schodel, ought to have additional time for

serving his Notice of Appeal against a development approval

which the respondent Council issued on "the applicant" for

that approval and (associated with that) whether "the

applicant" ought now be added as a party, Brisbane City Council being the sole respondent or co-respondent on the record.

There is a cross-application by Mr and Mrs Matheson for the

striking out of the appeal, alternatively, for an order that

they be made parties in it.  It rather seems that their

application has brought about Mr Schodel's.  He has had in

mind to bring it for some time, but because of the pressure of

other concerns not got around to it until now.

The Mathesons stand in the place of "the applicant", although

they would not seem to be able to bring themselves within the

definition of that expression in the Integrated Planning Act

1997 (IPA), or its successor, The Sustainable Planning Act

2009 (SPA), which came into force on the 18th of December 2009.  They became purchasers of the relevant site to which the relevant approval relates by a contract of the 8th of August 2009. 

At that time there was before the Council the relevant

development application lodged by "the applicant" Concept2Completion Designs Pty Ltd, the purpose of which was to regularise what was contended to be an exceedence of permissible heights in a new dwelling erected within a

development control precinct in Adam Street, Wynnum.  The

building was already up.  It was constructed for a gentleman

called Swan after a rather chequered history which included

the original building approval relating to the wrong site.

There had been not just one, but two enforcement notices

issued by the Council.  C2C's development application, which was lodged by the architect Mr Morrow-Woods' company as agent, was decided in early November 2009, but the formal advices were sent out by letters dated the 4th of December 2009. 

In the circumstances the development application was impact assessable and one of those advices from the Council went to Mr Schodel who had lodged a submission.  The application was approved by the Council.

The notice of appeal by Mr Schodel which named only the

Council as respondent was filed on the 7th of January 2010

which is accepted as having been in time.  Following that, the

only step taken by Mr Schodel was to notify the Chief

Executive of the department charged with administering local

government and planning matters.  He did not even notify the

respondent Council of the appeal; the Council learnt of it on

consulting the Courts website, and on the 19th of January

2010 entered its appearance.

About the middle of the year, when the exigencies of his work

on his own account as a certified public accountant apparently

spared him little time to attend to matters such as this

appeal, Mr Schodel learned that he ought, under the

legislation, to have made Mr Morrow-Woods' company a party,

and, further, that he ought to have given notice of the appeal

to it within two business days after starting the appeal - see

section 482(2) of the SPA. The IPA provision was s 4.4.41(2).

That two business days represents a reduction from the 10 which originally applied under superseded versions of the IPA, and is referred to in a number of the cases. As did the IPA, the SPA, rather oddly, from the point of view of a logical order, identifies "the applicant" as a co-respondent for the appeal in a later provision, namely section 485(3) (previously s 4.1.43(3)).

The service of a notice of appeal, as was said in Kangaroo

Point Residents Association v. Brisbane City Council [2009]

QPEC 33 at paragraph [23], "is not merely procedural; it is

imposed by IPA itself.  Failure to comply results in an

incompetent appeal unless the Court allows an extension of

time.  The importance which the legislation places upon timely

service of appeals has been recognised in this court, and

validly instituted appeals have been struck out where service

was tardy."  The authorities referred to in the footnote

include Mitchell v. Brisbane City Council [2006] QPELR 798 and

Fitzgerald v. Logan City Council [2004] QPELR 232.

Reference has been made to another appeal in which the

Association was appellant, Kangaroo Point Residents

Association v. Brisbane City Council [2006] QPELR 471. That

case, in its complexities, bears some similarity to the

present.  The Association as a submitter relied on having the

time for appeal which had been indicated by the Council when

it advised of the decision sought to be appealed.  The Council

had, in error, allowed too much time so that the Association

found itself seeking the indulgence of an extended time as

does Mr Schodel now.  "The applicant" there was not the owner

of the land, but had agreed to purchase it subject to there

being a development approval obtained.  It had completed the

purchase which it probably otherwise would not have done on

the basis that there had been no submitter appeal which would

jeopardise the Council's approval instituted.  The

circumstances exhibited factors tending both ways but Judge

Rackemann, in the result, refused the Association's

application for an extension of time and the appeal was struck

out.

In some circumstances errors by the assessment manager, for

example, in advising of appeal rights, have made it

appropriate for additional time to be allowed, as in Riethmuller v. Brisbane City Council [2005] QPELR 249; [2004] QPEC 63 and 64 for example. See too Soyka v. Hervey Bay City Council (unreported, Quirk DCJ, 30 October 2002) referred to at [2009] QPEC 33 at [25].

One of the factors considered in applications for further time

is the prospects of the appeal.  Mr Schodel appears to have

accepted advice that he's had which he has frankly disclosed

that his prospects were slim, if not on the technical aspects

then on the more practical ones centering on the reluctance of

this court and other courts to order demolition of works which

have been constructed, and particularly when they have been

constructed to completion, as here.

This is an unusual context in which delay doesn't have the

usual financial consequences for those on the "developer"

side.  Often the developer is anxious to start the development

and suffers holding costs if there's delay, but here, given

that the building is up, there's nothing of that kind.  There must, however, be emotional and like pressures on all concerned, which includes the Mathesons, who have made their home in the building since late 2009.  Settlement of their purchase didn't occur as early as might have been expected, given that the contractual arrangements were subject to another property being sold.  They did not purchase in ignorance of the difficulties that the construction of their house had encountered.  They were aware of the application before the Council, and of the possibility of a submitter appeal if the Council looked favourably on the application.  Contractual arrangements were made, including withholding part of the purchase price, to cover this eventuality.

Nothing came to the notice of the Mathesons or anyone else

relevant to belie the information obtained by appropriate

searches that there had been no submitter appeal instituted

within the submitters appeal period.  Presumably, had "the

applicant" been a party in Mr Schodel's appeal, that would

have become known quickly.  The retention moneys were released

in those circumstances.

The appeal does seek removal of part of the premises, in

particular a roof.  Mr Schodel has suggested from the Bar

table that the costs of doing that might not be enormous, but

there's no evidence about it, and there may well be problems

about who ought to bear the cost.  If he's correct about

exceedences in the height on his side of the Mathesons' house,

the impacts on his views of Moreton Bay would appear to be

significant.  Whether he is right about it is contentious.

Mr Morrow-Woods, who has appeared for himself, or C2C,

observing that they have no interest in the subject matter of

the appeal, accepts that there may be some exceedence on the

far side of the house where the neighbour is, or was, another

lot owned by Mr Swan.  He presents to the court the assertion

that regularising matters would not benefit the Schodels at

all, he contending there is no exceedence on their side.

There's an issue about this, as to which the court cannot

today form any view.  As to the prospects of Mr Schodel in the

appeal, they can't be said to be negligible.

There is the other aspect, however, of whether the court would

be likely to require removal of part of the structure, a

course I think would be unlikely.  For the Mathesons, there's not only the worry of the proceeding in which they're not even parties, and the consequent threat to the integrity of their home, there's also an issue of the trouble and cost of participating in an appeal if it is to go ahead on the basis of their being joined as parties.  So the issues are serious for everyone: for Mr Schodel, at least in his view, for his amenity, for the Mathesons, the future of their present family home.

There has been relevant change in circumstances since this

appeal in the SPA era was launched against the Council

decision made at the very end of the IPA era.

The delay since the institution of that appeal in the present

circumstances has had dramatic consequences.  The so-called

"applicant" which ought to have been made a party under the

SPA provisions and, indeed, may even have been one, albeit not

named, if section 485(3) is taken literally, leads to

inconvenient and unacceptable results and justifies the

statutory arrangements requiring submitter appellants in

particular to keep properly informed those who are directly

affected by their appeals.

The Planning and Environment Court Rules 2008 in rule 7(2)

(now replicated in rule 8(2) of the 2010 rules) reinforce that the "applicant" must be named as a respondent or corespondent, if that's what the "Act" requires.

Mr Schodel gave evidence by affidavit and was cross-examined.

I accept his assertion that he considered it was sufficient to

make his appeal known to the decision-maker, namely the

Council.  Not much reflection is needed, in my opinion, to

appreciate that the potential consequences of the appeal are

likely to be much more serious for the applicant for the development approval or for the owner of property from time to time; they are much more practically affected.  In my opinion, consideration of the relevant factors is persuasive that it would not be in a sound exercise of discretion to save Mr Schdel’s appeal by granting the indulgence he seeks.

Bringing in of Mr Morrow-Wood's company would not, it's true,

have brought in the Mathesons, but had what was required in

relation to that company been done, then one can feel

confident that the Mathesons would have been in a position to

take appropriate steps by different contractual arrangements

or otherwise to protect their position.  They might, for

example, have secured themselves the right to conduct

proceedings in the name of someone else.

On the assumption that a proceeding aeefecting their interests

in which that are not parties, exists, Mr Houston,

representing them, relies on rule 69 of the Uniform Civil Procedure Rules, which rules are brought in to supply lacunae in the rules of this court by rule 3(2) of our rules. It was submitted that rule 69 allows for the bringing in to appeals under the SPA of parties who ought to be there.

Ogle v Pine Rivers Shire Council [2008] QCA 232 is an

interesting example of rule 69 being resorted to to remove

from the appeal Mr Ogle who was originally "the applicant",

but in the view of the Court of Appeal had ceased to be an

appropriate and necessary party.  He was removed at the behest

of a company called Tendiris, which by the actions of a

mortgagee had acquired Mr Ogle's rights.

An example of rule 69 being used to “add” a party in an appeal

(by way of substitution) is Stewart-Zerba v Brisbane City Council [2006] QPELR 445. See the discussion in Glenrowan Land Pty Ltd v Mackay City Council [2009] QPEC 52.

I have some misgivings about the use of rules of court to

overcome the rather strict controls which the Sustainable

Planning Act enacts in respect of parties participating in one

capacity or another in the appeals which the Act provides for.

The same difficulty doesn't apply in originating applications

in the court.

It seems to me unnecessary to say more about this aspect.  The

potential consequences of success of the appeal are for the

Mathesons' rights as owners of their property so dramatic that

in my opinion they have standing to approach the court when

it's seized of an appeal of that kind which is defective in an

important way to seek to have an end put to that proceeding.

In those circumstances, I think that the principal relief

which was sought in their application filed on the 10th of

February 2011 ought to be granted - that is striking out of

the appeal.

It becomes unnecessary to consider the alternative relief

sought by them which would see them added to the appeal as

parties.

The Council has taken a neutral attitude today indicating in

particular through Miss Mitchell that it would not oppose the
extension of time which the appellant is seeking. Relief (a matter of a day or so only in commencement of the appeal) was granted to a submitter appellant whose omissions were similar to his in Bradshaw v Beaudesert Sire Council [2006] QPEC 71. The developer, albeit not named as a party or given notice of the appeal, was aware of it at the latest within 24 days; he did not assert any prejudice. Miss Mitchell intimated, as I understood her, that were the appeal to proceed to a hearing on the merits, the Council would defend its decision of November/December 2009 against Mr Schodel's attack on it.

Mr Schodel's application for an extension of time for the

purposes of performing what section 482 of the SPA says he

must do is refused.  Essentially, it is that refusal that

means the appeal should be struck out.

Does that cover everything?

MR HOUSTON:  It seems to have, yes, your Honour.

HIS HONOUR:  An extension of time for notification of the

appeal under section 482 of the Sustainable Planning Act 2009

is refused and the appeal is struck out.  

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