Towers v Building and Development Dispute Resolution Committee

[2012] QPEC 13

[2012] QPEC 13

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

No 49 of 2011

BRENDON TOWERS	Applicant
and
BUILDING AND DEVELOPMENT DISPUTE RESOLUTION COMMITTEE	First Respondent

and

BUNDABERG REGIONAL COUNCIL           Second Respondent

and

R DREW trading as BURNETT COUNTRY
CERTIFIERS  Third Respondent

BUNDABERG

..DATE 23/02/2012

ORDER

HIS HONOUR:  In this matter Mr Towers is disappointed about the decision of the Building and Development Dispute Resolution Committee, constituted by Mr Paneritos, in relation to an application in respect of the siting of a structure on his premises. 

He filed what is entitled an originating application on the 24th of November 2011.  The document, on its face, seeks both an extension of time in which to appeal and seeks orders effectively allowing the appeal.  In substance the document gives notice that Mr Towers wishes to appeal the decision and to extend time. 

The second respondent, the council, has filed an application in pending proceeding seeking orders that the proceedings by Mr Towers be struck out and an order for costs.  The grounds that are relied upon are threefold:  firstly, that he is out of time to institute an appeal against the decision of the Building and Development Dispute Resolution Committee; secondly, that he has not identified any appropriate grounds sufficient to warrant an extension of time within which to institute an appeal; and, thirdly, that the grounds contained in his proceedings are not valid grounds of an appeal to this Court from a decision of the Building and Development Dispute Resolution Committee.

Appeals to this Court from decisions of the Building and Development Dispute Resolution Committee are made pursuant to section 497 of the Sustainable Planning Act. The appeal is as of right but is limited to grounds of error or mistake in law or a want or excess of jurisdiction. Further, an appeal must be started within 20 business days after the day notice of the committee's decision is given to the party. That time limit may, however, be extended pursuant to section 497 of the Sustainable Planning Act.

The material before me includes an affidavit by the Registrar of the Building and Development Dispute Resolution Committee who deposes that, on Monday the 17th of October 2011, a copy of the decision of the committee was forwarded by pre-paid post to Mr Towers at his residential address and was also sent to an email address of his building certifier.  His certifier's email address had been given on the document which initiated the appeal to the Building and Development Dispute Resolution Committee.  The institution of the current proceedings was 28 business days after the 17th of October.  Accordingly, on the worst possible view of matters for Mr Towers, he was a maximum of eight business days late, which is not a very long period. 

Mr Towers' evidence, which I accept, is that he did not receive nor was he informed of the email which was sent to the certifier on the 17th of October 2011.  His evidence, which I accept, is that he did not receive notice of the decision until he received the copy which was posted to his residential address.  It seems that there was some delay between the time that the document was posted and when it was delivered to that address. 
Pursuant to section 39A of the Acts Interpretation Act, if an Act permits a document to be served by post, service is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post unless the contrary is proved. There is no material before me which, in terms, demonstrates when a letter posted by the Registrar in Brisbane would, in the ordinary course of the post, be delivered to addresses in Bundaberg. One would instinctively expect it to be only a day or two, although the material before me shows that the council did not receive correspondence until the 20th.

Mr Towers, in his affidavit, deposed that he received the decision notice on or about the 27th of October 2011.  If notice was first given to him on the 27th of October 2011, then his proceedings would have been within time.

Mr Connor, who appeared for the Council, correctly pointed to the decision of the High Court in Fancourt v. Mercantile Credit Ltd [1983] 154 CLR 087, at 95 to 97, to contend that there is a distinction to be drawn between when a letter is delivered and when it is received, and that it is not enough in order to prove the contrary, for the purposes of section 39A(1)(b), to prove a non-receipt within a certain time.

To take a different example, a letter posted on a Monday and which in the ordinary course of business would be delivered on the Wednesday, would be presumed to arrive on the Wednesday unless the contrary is proved.  The contrary would not be proved simply by someone saying that when they first checked their letterbox on Friday, they saw the letter for the first time.  It might well be quite consistent with that evidence that the letter was delivered by the Wednesday, as statutorily presumed.  So the fact that one does not actually receive a letter at a certain time is not to say that it wasn't delivered within that time.

In this case, however, Mr Towers gave oral evidence that, at this time, his mail was delivered by means of it being placed into his letterbox at his home, that he checks his letterbox on a daily basis and did so at the time, and that the letter was not in the letterbox at any time up until on or around the 27th of October.  It seems to me that one can infer from that evidence that it was not delivered up until on or around that time as well.

Mr Connor also relied upon the service by email to the certifier, on the basis that it was sufficient that the document came to be transmitted to a person who had authority to receive the document.  He invited the Court to infer from the fact that the email address had been put on the application document that Mr Towers had authorised the certifier to be his agent for the purposes of accepting service of the notice of the decision.  I am not sure whether that is a correct characterisation, but it is unnecessary for me to decide the matter for the reasons which I will now give.

One of the difficulties for Mr Towers, in asserting that his proceedings were within time and that his request for an extension of time was an unnecessary surplusage in an abundance of caution, is that he is not able to say that the letter was not delivered until the 27th.  The best he can say is it was not delivered until, "on or around", that day, and in his evidence said that it could have been a day either side.  Hence, whilst he is able to give evidence which suggests that the document was not delivered within the time it would ordinarily have been delivered in the course of the post, he is not able to establish that the delivery was sufficiently late for his proceedings to be in time, since he says it could have been delivered a day either side of the 27th, which admits of a prospect that the proceedings were at least one day late.

The matter is therefore best approached on the basis that he needs an extension of time under section 497. In order to obtain that indulgence, he is required to establish sufficient grounds. Mr Connor referred me to considerations enunciated in Lindsay v. Rose, Registrar of Immigration Review Tribunal, 44 ALD 570 at 578. I accept the prima facie rule is that proceedings commenced outside the allowable period will not be entertained. There is, however, a discretion to give an extension and that extension must be exercised judicially, having regard to all of the relevant considerations.

An explanation of delay is a relevant consideration.  In this case, that explanation is that even if Mr Towers was served with the document at an earlier time, it did not come to his attention until on or about the 27th of October.  The certifier did not draw it to his attention and despite checking his mail, he did not receive the posted copy until on or about that time.  Once he did receive the decision, he acted with reasonable promptness to institute the present proceedings.

The magnitude of the extension is also a relevant consideration.  As I have already noted, in this case, depending on what view one takes of when service was effected, the proceedings is anything from zero to eight working days late.  That is not a particularly extensive period of time, set against the evidence of the delayed receipt of notice of the decision.

Any prejudice to the respondent is, of course, a matter to be considered, but there is no suggestion that the respondent has been prejudiced in its ability to argue the substantive appeal, by reason of the lateness of it.  The only prejudice that Mr Connor pointed to was the costs that the Council had been put to in responding to an application to extend time.

Another relevant consideration is the merits of the appeal.  Obviously, a person who seeks an extension of time to bring an appeal which is obviously hopeless on its face is less likely to obtain the extension than someone who would otherwise be precluded from running an appeal with at least a reasonably arguable point.  It is in this respect that Mr Connor's submissions with respect to the extension of time overlaps with his ground for striking out the appeal on the basis that it does n0t disclose a proper basis for appeal.

It has already been observed that an appeal to this Court from a decision of a member of the Building and Development Committee is limited to an error or mistake in law or a want or excess of jurisdiction.  In this respect, the jurisdiction of this Court in respect of appeals against decisions of the Building and Development Committee is to be contrasted with the jurisdiction that this Court exercises when it is hearing appeals against decisions of local governments on development applications more generally.  In relation to the latter category of case, appeals proceed by way of a hearing anew and the Court sits in the shoes of the decision-maker and re-decides the matter on the merits having regard to the evidence called before this Court.

The nature of an appeal against a decision of the Building and Development Committee is quite different.  It focuses upon an error or mistake in law or a want or excess of jurisdiction.  It focuses upon whether the member who made the decision erred at the time the decision was made, on the material before the decision-maker. 

As Mr Connor pointed out, an appeal is required to state the grounds.  In this case, the grounds that are stated, in what is termed an originating application, by Mr Towers state that the location of his structure for which he seeks approval is acceptable and appropriate, having regard to relevant considerations.  On its face, that does not raise any question which is a proper ground of appeal.  It is simply an assertion about the merits of the application.

Faced with Mr Connor's application, Mr Towers endeavoured to articulate grounds in a separate document which was handed to the Court on the previous review of this matter.  At that time I expressed the view that perhaps Mr Towers, who does not have the benefit of any legal representation, had in mind two possible grounds, namely, a Wednesbury unreasonableness ground, and secondly, a ground which asserted that the member had taken into consideration an irrelevant consideration in reaching his decision.  At the time, attempting to be somewhat helpful to Mr Towers, given his lack of legal representation, I endeavoured to explain to him the distinction between a Wednesbury unreasonableness issue and a generalized review of the merits of a matter.

Subsequently, Mr Towers filed an affidavit.  That affidavit annexes another document, which is somewhat different from the previous one, which now sets out what he wishes to contend are errors or mistakes of law.  He enumerates four alleged errors and then what is referred to as, "additional error or mistake in law".  As to the intial four grounds, they are, on their face, simply an assertion that the siting of his structure does comply with the relevant performance criteria in the relevant code.  The relevant performance criteria provides that the location of a building or structure facilitates an, "acceptable streetscape", and is appropriate for a number of things.

Whether a building or structure does, indeed, facilitate an acceptable streetscape is a question of fact, rather than law.  It might be possible to formulate a case on the basis of a Wednesbury unreasonableness ground, but not withstanding my attempts to assist him last time, to understand the distinction between a mere argument on the merits and an assertion of Wednesbury unreasonableness,  Mr Towers has not formulated his case, in this respect, on the Wednesbury unreasonableness basis.  And, on reflection, I think Mr Connor is right to suggest to me that it is not really up to me to formulate and articulate that case myself.

The so-called  "Additional error or mistake in law", on the last page of Mr Tower's document, however, is in a different category.  This focuses upon a part of the reasons of the member where he said "Finally, it was considered that the structure could be repositioned onto available space on site, without contravening QDC1.2." 

Mr Towers contends that, in judging whether the siting of his structure achieved an acceptable streetscape for the purposes of performance criteria 1, Mr Paneritos should have been assessing the streetscape, rather than the area within the boundaries of his property, and in particular, that he should not have been considering whether it would have been possible for Mr Towers to bring the structure into compliance with the acceptable solutions nominated in the Code.

Mr Connor readily conceded that, to the extent that
Mr Paneritos approached the performance criteria on the basis that it was relevant for him to consider whether it would have been possible to adopt the acceptable solution, then an irrelevant consideration had been taken into account. He foreshadowed, however, that on the hearing of the appeal, if it is to proceed, he would be submitting two things. The first is that Mr Paneritos was perhaps looking at a consideration that was relevant to whether there were grounds to approve the structure, notwithstanding noncompliance with the performance criteria.  That is certainly not what he purports to be doing on the face of his reasoning.

Secondly, it was said that it will be argued that the decision should stand, notwithstanding that irrelevant consideration, - if, in fact, it was taken into consideration in judging the performance criteria - because it is said that, putting that matter to one side, the decision of Mr Paneritos would not have changed.  Mr Connor rightly conceded however that those were matters more for argument on the hearing of an appeal than for consideration at this stage.

It seems to me, therefore, when one has a look at the grounds, as reformulated by Mr Towers, that they include at least one relevant ground which would be a proper ground of appeal to be argued, that is, the matter raised under the heading "Additional error or mistake in law."
Having regard to the extent of the delay in instituting proceedings, the explanation for that delay, the absence of any prejudice to the respondent in defending the proceedings, if an extension were granted, and having regard to the fact that the grounds of appeal, as now formulated, include at least one ground which appears to be relevant and argueable, it seems to me that, on balance, the interest of justice would best be served by granting an extension of time.

A further matter raised by Mr Connor is that the right form of document was not lodged in the sense that it should have been a notice of appeal, rather than an originating application.  He acknowledges that that can readily be remedied by me directing that the originating application filed on the 24th of November, 2011 be taken to be a notice of appeal, however I will also direct that the grounds of appeal are not those stated in the originating application, but rather that which is identified as "Additional error or mistake in law" on the second page of Exhibit BMT001 to the affidavit of
Mr Towers filed on the 17th of February, 2012.

I am also minded to give Mr Towers one last opportunity, and a brief opportunity, to consider whether he wishes to rely on any further issue of law and to formulate that within a short period of time.  I would at least suggest to him that if he wants to consider doing that then he should think about obtaining the benefit of some legal advice.

I will extend the time for institution of an appeal to the 24th of November, 2011. 

I will direct that the originating application filed on the 24th of November, 2011, be taken to be a notice of appeal.

I will direct, as I've indicated, that the grounds of appeal be taken not to be those outlined in the originating application, but to be identified under the heading "Additional error or mistake in law" in Exhibit BMC001 of the affidavit of Mr Towers.

I will otherwise dismiss the Council's application to strike out the proceedings.

I will order that the appeal be set down for hearing in Bundaberg on the 5th of March.  That will be Judge Searles.  And I will direct that the issues in the appeal be the ground of appeal which has been identified today by my order.

I will direct that if the appellant wishes to rely on any other ground of appeal, that he give written notice of that on or before 4 p.m. next Tuesday, the 28th of February.  And I will list the matter then for a review on the 29th of February and I will see if I can get Judge Searles to do that review.

I will reserve the Council's costs of each application.

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