Yu Feng Pty Ltd v Ipswich City Council

[2007] QPEC 125

[2007] QPEC 125

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No 1587 of 2007

YU FENG PTY LTD	Appellant
and
IPSWICH CITY COUNCIL	Respondent
and
FKP COMMERCIAL DEVELOPMENTS PTY LTD	Co-Respondent
and
BUNNINGS GROUP LTD	Co-Respondent by Election
and
P & E Application No 2020 of 2007
BUNNINGS GROUP LTD	Applicant
and
IPSWICH CITY COUNCIL	Respondent
and
YU FENG PTY LTD	Second Co-Respondent
and
FKP COMMERCIAL DEVELOPMENTS PTY LTD	Third Co-Respondent
BRISBANE ..DATE 29/08/2007
ORDER

CATCHWORDS: Integrated Planning Act 1997: ss 3.5.15(3),
4.1.28(2), 4.1.55 Uniform Civil Procedure Rules: s 69(1)(b)
commercial competitor's submitter appeal against council
approval for business use of bulky goods sales, garden centre
and café - whether appeal late - whether Council properly gave
copy of decision notice to set appeal period running - copy
given to submitter's agent with no mention of submitter's name

(as advised to it), or the identified author of the submission	10
or allusion to any submission - agent's personnel failed to appreciate relevance of copy to them and returned it to the council - circumstances in which, if needed, a longer time
would have been allowed for filing the appeal - parties to appeal - successful application to be joined in submitter's appeal by company asserting (against challenge by the prospective lessor) a continuing entitlement to become lessee on completion of the approved development.
20
HIS HONOUR: These applications can be disposed of now. The more unusual one is that of Bunnings Group Limited to be joined in appeal 1587 of 2007 which was commenced on the 5th
30
of June 2007 by Yu Feng Limited. It complains of the respondent Council's decision to approve a development application which authorises commercial development of the premises at 383-391 and 393-415 Redbank Plains Road, Redbank Plains for a business use of Bulky Goods Sales Garden Centre
40
and Café. The proposal of the co-respondent, FKP Commercial was to lease premises at the indicated address to Bunnings, presumably for a Bunnings Warehouse outlet there after a suitable building had been constructed.
50

Differences have arisen between FKP and Bunnings, centring on the former having claimed to exercise a right to terminate the commercial arrangements indicated in a general way above. 29082007 D.1 T(1)07/CAS(BNE) M/T BRIS17 (Robin DCJ) 2 ORDER 60

Bunnings dispute FKP's entitlement to terminate arrangements,	1
asserting that FKP's failure to pursue an application in relation to signage constitutes a breach of contractual obligations, and precludes reliance on the want of a signage approval to bring arrangements to an end. It's accepted that

10

the Supreme Court is the appropriate venue for forcing FKP to
do what Bunnings contends is the right thing. Mr Cooke QC,
for Bunnings, encountered less opposition than he'd
anticipated to his client's application, or to his desire to

be heard on the other applications which are before the Court

20

within the appeal.

30

40

50

3   60

29082007 D.1 T(1)07/CAS(BNE) M/T BRIS17 (Robin DCJ)

Those are FKP's application to have the appeal struck out as	1
one instituted late and what might be seen as a cross- application by the appellant, Yu Feng Proprietary Limited, to have its appeal validated in the sense of recognised by the Court as a timely one, alternatively, for relief under section

10

4.1.55 of the Integrated Planning Act 1997 (IPA).

The explanation for the lack of opposition - perhaps it cannot quite be said there is consent; to his client's coming in as a party is to be found in the recent Court of Appeal decision of

20

Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA

41. The relevant point is neatly put by McMurdo J:

"The applicant's submission that by implication the
Integrated Planning Act has ousted the operation of Rule
69 and indeed Rule 750 of the Uniform Civil Procedure

Rules in relation to proceedings in this Court must be	30
rejected as having no support in terms of the statute."

In the result, under rule 69(1)(b), the purchaser of a site from the developer-applicant was joined as a party to an application for leave to appeal by an adverse submitter in

40

recognition of its interest.

The restrictive provisions in the IPA from the point of view of recognising would-be litigants in the Court as having standing are, I think, well known. I have encountered them

50

myself in Ogle v. Pine Rivers Shire Council [2005] QPELR 291
and I am well aware of Judge Rackemann's decision in Sushames
v. Pine Rivers Shire Council [2006] QPELR 188 which, in my
understanding, has been upheld by the Court of Appeal since,
29082007 D.1 T(1)07/CAS(BNE) M/T BRIS17 (Robin DCJ) 4 60

but without reference to Leda Holdings. See Sushames v. Pine	1
Rivers Shire Council [2006] QCA 171. Ogle, like Sushames, concerned someone who had become the owner of property at some stage after the making of a development application by a former owner. In Ogle, the new owner, in my view, in the

10

special circumstances of the case, became entitled to the
rights of the applicant for a development permit or approval

and entitled to pursue an applicant's appeal under s 4.1.27.

In slightly different circumstances in Sushames, the would-be

20

party in this Court was unsuccessful in establishing standing. simply to become lessee. Judgment should be reserved on the question of whether, if there had been real opposition to its joinder, that opposition might not have succeeded.

30

Bunnings is concerned that FKP may not pursue the appeal in the way which would maximise Bunnings' interest in the matter, that it might, for example, agree to some scaling down of the proposal as it is presently approved.

40

At the beginning of proceedings this afternoon I made an order that Bunnings be a co-respondent by election in Yu Feng's appeal. The principal question for me has been the status of that appeal. The IPA, in Section 4.1.28(2), provides that an

50

appeal such as Yu Feng's, which is that of an adverse
submitter, must be started within 20 business days after the
day the decision notice or negotiated decision notice is given
to the submitter; see subsection (2).
29082007 D.1 T(1)07/CAS(BNE) M/T BRIS17 (Robin DCJ) 5 60

In the circumstances of this case the giving of notice was	1
delayed in circumstances which now prove embarrassing. The Ipswich City Council was assessment manager and its obligation to give written notice of its decision arises under Section 3.5.15, in particular, subsection (3). The Council received

10

only one adverse submission in respect of the development of November 2006. FKP availed itself of the opportunity to
application, being Yu Feng's. It became known in Yu Feng's
camp by no later than the 6th of December 2006 that the

20

negotiate further with the Council to some effect. A
development application negotiated decision notice, dated 20th
of March 2007, subsequently issued. On the unchallenged
evidence before the Court that did not come to the attention

of Yu Feng or its solicitors or the firm of Buckley Vann,

30

planning consultants it had engaged to assist it in lodging of
the adverse submission until the end of May 2007. That seems
odd, given that in the previous December, when what had
happened on the 16th of November became known, persons

concerned were alerted to be on the lookout for the notice

40

from the Council which would trigger the appeal period.

It's not in the least surprising that Yu Feng should wish to appeal the Council's decision, given that in the general vicinity it operates a rival shopping centre. Whatever might

50

be thought about appeals in this Court by competitors, they
are extraordinarily common. I'm in the middle of hearing one
this week in relation to Mackay and next week will embark on
one in relation to Yeppoon.
29082007 D.1 T(1)07/CAS(BNE) M/T BRIS17 (Robin DCJ) 6 60

Mr Morzone submits that for purposes of Section 4.1.28, his	1
the Council did on the 17th of April 2007 was send to Buckley
client wasn't given notice of the decision under appeal. What development application and negotiated decision notice which

10

was received on the 20th of April 2007. That was a
regrettably uninformative document which referred to FKP's
application, identifying the application number, the proposal
and the property location, but not indicating why the

communication was being sent to Buckley Vann Town Planning

20

Consultants at their post office box.

In Buckley Vann's office the communication apparently mystified everybody. Jodie Anderson, the lady who was responsible for opening the mail, sent an email to all Buckley

30

Vann staff at 11.45 a.m. on the 20th of April 2007, to the following effect:

"Subject: Mail re 383-391 and 393-415 Redbank Plains anyone own this?

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Nobody responded and the communication from the Council was returned to it by Ms Anderson on the theory that it had been sent to Buckley Vann in error.

It is plain why the Council resorted to Buckley Vann's 50

address. The adverse submission of Yu Feng was made by a
letter of 11th of April 2006 on Buckley Vann's letterhead and
begins as follows:
29082007 D.1 T(1)07/CAS(BNE) M/T BRIS17 (Robin DCJ) 7 60

"RE: Submission lodged pursuant to the notification 1

procedures of the Integrated Planning Act requiring an
Impact Assessment Application for an application
described as stage 2 Redbank Plains Road Shopping Centre.
Council Application Number 6895/05.

We have been instructed by our client Barry Nilsson
Lawyers acting on behalf of Yu Feng Pty Ltd, to prepare
and submit a submission to Council on this matter before

the close of the statutory period for the lodging of	10
submission as set for 13th April 2006.
To clarify, for Council records the submitter in this instance should be taken as Yu Feng Pty Ltd."

The letter concludes, after dealing with the merits of the

20

development application:

"We thank you for the opportunity to make this
submission. We look forward to Council's consideration
of the matters raised and further advice from you
accordingly. Please do not hesitate to call the author

to discuss this matter further."

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The letter indicated at its foot, following signature by Liza
Volks, that a copy was being provided to Barry & Nilsson
Lawyers, GPO Box 1451, Brisbane, Queensland, 4001, attention

Nykita Johnston.

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If the notice sent out by the Council dated 17th of April 2007
complies with the assessment manager's obligations to give notice, then the appeal comes too late. It was instituted extremely promptly after the 30th of May 2007, after there had

been some oral communications between Ms Anderson and the 50

Council.
29082007 D.1 T(1) 9-10/PJH (BNE) M/T BRIS17 (Robin DCJ 8 60

Ms Anderson deposes that after a delay of a couple of weeks

1

within Buckley Vann's office she contacted the Council and was
advised by an unidentified lady there that the communication dated 17 April 2007, which was quite bulky as it contained a full negotiated decision notice, should be back to the

Council. She did post the material back to the Council. She	10
deposes that about a week after that, she received a telephone
call from the same or another unidentified lady at the
Council, advising that the Council had received the letter
back, which elicited from Ms Anderson the explanation that she
could not see that the letter belonged to anyone in Buckley	20
Vann.
While the two women were on the phone, it seems that Ms
Anderson consulted in greater detail than she had on or about
the 20th April 2007 Buckley Vann's completed job list, which	30
was sufficiently voluminous, to preclude on the earlier occasion the locating of the owner within the firm of the Council's mystery communication.
Ms Anderson deposes that something was said during the	40
discussion on the telephone which led her to realise that the
letter had been intended for Buckley Vann and related to the
job described in the completed job list as "Redbank Plains
subdivision". On the 30th of May 2007, she received the
Council's original letter back under cover of a "with	50

compliments" slip, which supplies some useful additional
information; it reads:
29082007 D.1 T(1) 9-10/PJH (BNE) M/T BRIS17 (Robin DCJ 9 ORDER 60

"Jody, as per our phone conversation, Buckley Vann Town

Planning were submitters for this application. Regards,	1
Robyn."

The submitter, in my view, on the reading of the material, was
not Buckley Vann but rather Yu Feng, as the submission made

plain. There is no material before the Court as to the way in	10
which the Council recorded adverse, or indeed, favourable
submissions for purposes of identifying the submitter as
referred to in the sections mentioned. There are definitions
in the schedule in the Act of "submitter" and "principal
submitter" which may be thought relevant.	20
My opinion is that the submitter was Yu Feng rather than
Buckley Vann, and that appropriate steps were taken to make that clear to the Council. It is easy enough to understand that being overlooked when the Council, as obliged by the	30
Integrated Planning Act, gave notice of the negotiated
decision notice. But I do not think that ought to have the
consequence that this appeal is adjudged out of time. Indeed,
in the circumstances, the copy of the negotiated decision
notice was not "given to the submitter" at all in April 2007,	40
within s 4.1.28(2).
There is considerable force in the arguments mounted against
Yu Feng that it is simply a case of the systems in Buckley
Vann's office being inadequate. There are practical	50

explanations advanced for that, such as one or more important
persons being absent on maternity leave. More than a year
elapsed between Buckley Vann's sending the submission (which
29082007 D.1 T(1) 9-10/PJH (BNE) M/T BRIS17 (Robin DCJ 10 ORDER 60

completed this retainer) and the Council's sending its notice

1

of the negotiated decision (four weeks after the date thereof)

presumably in reliance on s 3.5.15(3)(c).

The Court tends to enforce fairly strictly Integrated Planning

Act obligations in respect of giving notices such as the	10
present, holding them invalid if, for example, they do not contain the requisite statement of appeal rights.
The consequence of this is that I think Mr Morzone correct
when he says that the appeal is not late because it has not	20
been demonstrated that the notice which would trigger the running of the 20 business day appeal period had been given at any earlier time than well within 20 business days before the 5th of June 2007.
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I adjudge the notice of appeal a timely one. If it were
necessary to consider Mr Morzone's alternative application for
relief under section 4.1.55, I would think the case a strong
one, indeed, stronger than Carter v Redland Shire Council
[1999] QPELR 88. That section raises considerations of	40
prejudice to other parties. Of course, there is a very basic
prejudice, analogous that which someone who has to face
otherwise statute-barred proceedings faces if the limitation
period is extended, in persons having to face an appeal which
might otherwise fail because it is too late. Here, for	50

practical purposes, there was no delay after 30 May 2007,
although a day was lost because the relevant staff member of
Barry & Nilsson to whom Buckley Vann reported was away ill,
29082007 D.1 T(1) 9-10/PJH (BNE) M/T BRIS17 (Robin DCJ 11 ORDER 60

and unable to seek and obtain Yu Feng's instructions to appeal

1

until 4th June 2007. If the appeal was late, it was late by no

more than 10 business days.

I accept Mr Morzone's submission that given the way the dates

worked out, there is no particular prejudice to Bunnings in	10
the chronology such that there was an extant valid planning approval from the Council at some strategic time, from the point of view of FKP's attempts to terminate contractual relations with Bunnings.
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Mr Cooke asserts that Bunnings have lost or stand to lose
months of profitable trading in their venue. I think matters
of that kind are simply too speculative at this stage, and
that it is a matter for the Supreme Court and perhaps other
Courts on appeal to determine whether Bunnings really has any	30
interests to protect any more at all. So it is not really necessary to make any order, is it, Mr Morzone?
MR MORZONE: I do not think so, your Honour.
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HIS HONOUR: Except to dismiss FKP's application. (A late appeal is at risk of being struck out, as in Fitzgerald v. Logan City Council [2003] QPEC 051, where the circumstances
did not justify relief under s 4.1.55.)
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12 ORDER 60