White v Esk Shire Council

[2006] QPEC 47

[2006] QPEC 047

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Kingaroy No 2 of 2005
P & E Appeal No 478 of 2006

ALFRED A WHITE AND WILMA WHITE	Appellants
and
ESK SHIRE COUNCIL	Respondent

BRISBANE

..DATE 05/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 370 - appeal dismissed when appellants failed to attend (although acknowledging receiving notice of) review of it at a callover - this treated as equivalent to a hearing for directions in the circumstances - appellants who had changed address (rendering themselves incommunicado) had months ago given written notice of intention to file a notice of discontinuance - respondent's application determined although not served - Planning and Environment Court Rules r 11 and r 14 applied

HIS HONOUR:  This is an awkward situation for everybody concerned, including the Court.  Mr and Mrs White filed a notice of appeal in the Kingaroy Registry on the 20th of September 2005 seeking to get rid of an enforcement notice which the Council had issued on or about 26th of August
2005 under Section 4.3.11 of the Integrated Planning Act. The enforcement notice which is one of many attachments to the notice of appeal advised the Whites of their appeal rights, which they availed themselves of. The Registrar, on the 7th of November 2005, wrote to them advising that all Kingaroy matters in the Planning and Environment Court would be reviewed at a callover on the 19th of January 2006. The address used by the Registrar was a post office box at Kilcoy, being the only address notified to Court.

It is clear that the Registrar's letter was delivered because it attracted a response dated 26th December 2005 which indicated the same post office box address at Kilcoy.  The Registrar's received stamp indicates receipt by the Court on the 3rd of January 2006.  This letter expresses some sympathy for the Council on the basis that it may have had no option but to act following the receipt of "anonymous complaints".  The letter concludes as follows:

"We will file with you the 'notice of discontinuance' as per your advice.  Thank you.  A. White.  P.S. Late reply due to change of address."

The reference is to the Registrar's letter which stated:

"If your matter has been resolved or discontinued you are requested to file with the Registry as soon as possible, a notice of discontinuance or withdrawal.  This will alleviate the need for you to participate in a callover."

At the callover Mr Kevin was representing the Council, there was no appearance by or for the appellants.  His Honour Judge Wilson adjourned the matter to the 3rd of February 2006 when once again only Mr Kevin appeared.  He undertook to prepare a notice of discontinuance and to contact the Whites advising them that if there was no notice of discontinuance filed, the matter would be mentioned again at 9.00 a.m. on the 8th of March 2006.

...

HIS HONOUR:  On the 8th of March 2006, again Mr Kevin was the sole participant.  The matter was adjourned until today.  The Court accepts from Mr Kevin that he has been as active as he can be in attempting to make contact with the Whites.  Advice of hearsay or hearsay on hearsay nature indicates that they have indeed, as the Boxing Day letter suggests, left the Esk Shire and gone to live in Baffle Creek. 

Post Office authorities apparently indicated to Mr Kevin that they were not prepared to disclose anything regarding the Whites whereabouts or means of contacting them but would forward mail addressed to them to the post office nearest to what was believed to be their new address at Baffle Creek, somewhere near Bundaberg.  The latest advice from the Post Office is that the Whites have been very recently advised of the holding of registered mail emanating from Mr Kevin at the Post Office but have not attended to collect it.  The timing is such that it cannot be suggested yet that there is anything suspicious about that.

What Mr Kevin seeks today is an order dismissing the appeal given that the Whites have done nothing to bring it to an end themselves, as was foreshadowed.  To persuade the Court that there can be no injustice about this, Mr Kevin has gone into some of the background circumstances, which are unusual. 

The Whites became the owners of 10 or 11 contiguous blocks of land in the township of Moore created by a subdivision by the town's founder around 1904.

The fortunes of the township were such that the anticipated residential development did not occur.  Recent arrivals in Moore, the Whites saw an opportunity to make use of the blocks of land which were offered to them. 

The Council's attention was drawn to the carrying on of roadworks which are indicated in diagrammatic form in Exhibit 1B.  I have marked Exhibits 1A and 1B representations of allotments in the township of Moore supplied by Mr Kevin. 

A new road traversing most of the subject blocks which provides access to Railway Terrace which in turn runs off the D'Aguilar Highway is indicated diagrammatically.  It appears that the blocks in question have frontage to the D'Aguilar Highway but it may be a frontage that cannot be availed of legally or in practical terms.
There are also tendered photographs, marked as taken on the 26th of September 2005, which show the roadworks.  Essentially they are a gravelled track with a series of apparently substandard cross-overs at the new frontages created by works of the blocks entered.  At least in some places, these have to cross a substantial ditch. 

The endorsed notes and the photographs indicate that there are recently constructed house pads in areas which the photos show are quite steep and eroding.  All of this work is occurring on private land.  The Council has become uneasy as to what the long term plans of the Whites might be, fearing that, if purchasers discover they have been permitted to acquire substandard blocks, the Council may be asked to take some responsibility.  That explains why the enforcement notice sought the making of a proper application to permit operational works to be carried out.

It would seem to me that there probably is operational work, as defined in section 1.3.5, involved here.  If a proper application was made, the Council could, by an information request or otherwise, inform itself of what is involved and formulate appropriate conditions.  The horse may have bolted in this regard as the Boxing Day letter suggests that most of the blocks have already been sold. 

Mr Kevin says that the enforcement notice is, as things stand, of little use to the Council as there is no real way of enforcing it.  It may well be that application is made to the Court in due course for an injunction or perhaps an enforcement order.  What the Council really seeks is to clear the decks and be rid of current appeal.

There is nothing that can be found in the Planning and Environment Court Rules to cover the situation, although Mr Kevin has made reference to Rule 11; it provides:

"Unless the Court otherwise orders under Rule 14, the applicant must give a copy of the originating application to each other party."

From the outset he has made it clear that the Whites do not have a copy of any application by the Council today.  The circumstances mentioned already indicated the Whites have effectively made themselves incommunicado so far as the Council is concerned.  I think it is an appropriate case for the Court to otherwise order under Rule 14, bearing in mind that all that is sought is the termination of an appeal which the appellants have said months ago would be discontinued.

The circumstances are ones in which the Uniform Civil Procedure Rules are applicable, given that the Planning and Environment Court Rules have nothing to say. Rule 370 applies, by sub-rule (1):

"If a party, after receiving notice of a hearing for directions does not attend a hearing for directions"

Although nothing was said in terms regarding directions in the Registrar's communication, I am of the view that the circumstances described came about on the 19th of January 2006.  The Court, by Rule 370(2), may in such circumstances do various things including "(b) dismiss the application or proceeding." 

The following sub-rule provides that:

"In deciding whether to dismiss the application or proceeding the Court must have regard to the principle that the interests of justice are paramount."

I have set out at some length the relevant considerations which essentially are that dismissing the appeal is doing no more than the appellants said they would do themselves. 
So, there will be an order that the appeal be dismissed.  The Whites would have the usual right of any litigant in whose absence an order is made to approach the Court to seek to have it changed.

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