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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Schodel v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] QPEC 42
Decision Date: 28 February 2011

CaseChat Overview and Summary

Phillip John Schodel sought an extension of time to notify the developer of the appeal against the Brisbane City Council's approval of a development application. The appeal was lodged against the Council alone, and not against the developer, Concept2Completion Designs Pty Ltd (C2C). The developer was an agent engaged to seek approval for the construction of a dwelling house that was already completed by its client. The client had sold the property to third parties, Mr and Mrs Matheson, who were unaware of the appeal. The Mathesons applied to be joined in the appeal, which might lead to some demolition being required if the appeal remained on foot. The court was required to decide whether Mr Schodel should have additional time for serving his Notice of Appeal and whether C2C should be added as a party.

The court found that the notice of appeal served by Mr Schodel was in time, but he did not notify the respondent Council of the appeal; the Council learned of it on consulting the Courts website. Mr Schodel learned that he ought to have made C2C a party and given notice of the appeal to it within two business days after starting the appeal. The court held that the service of a notice of appeal is not merely procedural, and failure to comply results in an incompetent appeal unless the court allows an extension of time. The court also held that the Mathesons had standing to approach the court to seek to have an end put to the defective proceeding.

The court refused Mr Schodel's application for an extension of time for the purposes of performing what section 482 of the Sustainable Planning Act 2009 says he must do, and the appeal was struck out.

The final orders of the court were that 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.

Orders