Seng v Western Downs Regional Council

[2011] QPEC 13

[2011] QPEC 13

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 100 of 2010

GRAHAM THOMAS SENG	Appellant
and
WESTERN DOWNS REGIONAL COUNCIL AND ANOTHER	Respondents

BRISBANE

..DATE 16/02/2011

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 461(2), s 497 Integrated Planning Act 1997 s 4.1.27, s 4.1.55

Developer's "conditions" appeal started late, outside the 20 business days allowed - respondent Council had purported to grant in advance an extension to the date when the appeal was commenced - appeal proceeded to an agreed resolution involving all parties, including the concurrence agency - they all having consented, the time for appeal was extended

HIS HONOUR:  I make an order in terms of the initialled draft.

There are two matters calling for comment. The first is that the time for starting the appeal is extended to the 14th of January 2010. That order is made pursuant to section 497 of the Sustainable Planning Act 2009, which reproduces section 4.1.55 of the Integrated Planning Act 1997.

The appeal period of 20 business days elapsed on the 16th of December 2009 - see now section 461 subsection (2) of the SPA.  Before that date the appellant, Mr Seng, had approached the Council seeking an extension of 20 business days to appeal against the conditions of approval contained in the Council's decision notice, which was issued on the 18th of November 2009, the impact assessable development application having been lodged in January of the same year.

The Council reacted sympathetically to Mr Seng's request for more time having regard to the impending Christmas/New Year period.  Indeed, by e-mail on the 4th of January 2009 the Council advised its view that the time for appealing had been extended until the 14th of January 2010, a time limit which Mr Seng was able to meet.  Unfortunately, the Council lacked power to extend the time for appealing, which is tightly regulated by the legislation.

The circumstances are sympathetic to Mr Seng from the point of view of obtaining additional time.  He acted in good faith to protect his interests.  His application for an extension of time within which to appeal is supported by the Council, which I suppose bears some responsibility for the situation and also by the co-respondent, the Chief Executive of the Department of Transport and Main Roads.

It's a proper case for the Court to exercise its discretion to extend time.  The appeal was started on the 14th of January last year and has proceeded to a resolution which is suitable to all parties.  It is incumbent on the Court not to stand in the way of achieving that.  Extensions of time for appealing are not to be had for the asking.  In some cases, such as submitter appeals, for obvious reasons to do with developers and others knowing where they stand, it's extremely difficult for submitter appellants to obtain further time.  That's not a problem for Mr Seng here.

There are minor changes to the development proposal from that which was publicly notified which the Court notes.  They relate to an acoustic barrier which, in the lower section, is to be increased to three metres in height from the two metres originally suggested in accordance with the advice and recommendations of an acoustic expert.  There are slightly improved arrangements to facilitate access through premises on the Warrego Highway in Chinchilla to the truss construction use which had been established behind pursuant to the development approval.  Those changes are comfortably within the parameters of what is permitted by the legislation.

Order as per initialled draft.

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