Zehnder Dezent Je Pty Ltd v Caloundra City Council
[2010] QPEC 68
•6th August 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Zehnder Dezent JE Pty Ltd v Caloundra City Council [2010] QPEC 68 |
PARTIES: | Zehnder Dezent JE Pty Ltd |
FILE NO/S: | 420 of 2005 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Application for Appeal |
ORIGINATING COURT: | Maroochydore |
DELIVERED ON: | 6th August 2010 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 11th June 2010 |
JUDGE: | J.M. Robertson DCJ |
ORDER: | 1. Appellants application for leave to proceed refused with costs 2. Council’s application to strike out appeal is granted with costs of application and appeal. |
CATCHWORDS: | PRACTICE AND PROCEDURE- where appellant had taken no steps to prosecute appeal for over 2 years, where appellants reasons did not address prospects of success, whether this issue is relevant in planning appeals, where appellants reasons for delay is purely commercial, where Council has suffered financial prejudice, whether appeal should be struck out Planning and Environment Court Rules 1999, 2008, 2010 (Qld) Uniform Civil Procedure Rules 1999 (Qld). Hall v RU & CE McColl Pty Ltd (2007) QCA 182. Jimbelung Pt Ltd v Beaudesert Shire Council and Others (2005) QPEC 032 Tyler v Custom Credit Corporation Limited (2000) QCA 178 |
COUNSEL: | |
SOLICITORS | Mr C. Wirz for the appellant Mr M. Heiner for the respondent. |
On 20 December 2005 the applicant/respondent (Zehnder) appealed to this court against the decision of Council dated 8 December 2005 to refuse a development application for a development permit for a material change of use for a restaurant development for land at 62 Hillside Lane, Bald Knob.
From that date, Zehnder took no step to advance the appeal apart from attending a without prejudice meeting with Council officers in January 2006 which did not resolve the issue. At the time the appeal was lodged, by virtue of r 3 of the Planning and Environment Court Rules 1999 which took up r 5 of the Uniform Civil Procedure Rules an obligation was placed on parties to litigation by way of implied undertaking to the court to proceed in an expeditious way. This is an important obligation as can be seen from the many cases since its introduction which have interpreted and applied this rule.
In this particular jurisdiction and this registry it is well known that there are a large number of appeals in which nothing has been done for many years. Since 2008, the P&E Rules have specifically placed upon the party bearing the onus (in this case Zehnder) a mandatory obligation to apply to the court for directions. This rule (r 18(3)) in the 2008 Rules, and r 19(3) in the 2010 Rules) is clearly designed to compel the party bearing the onus to advance the proceedings in an expeditious way. The 2010 P&E Rules have also imported rules 5(1) – (3) of the Uniform Civil Procedure Rules in r 4.
On 15 March 2010 Mr Heiner (solicitor for the Council) wrote to Mr Wirz of IPA Law Planning Lawyers (solicitors for the appellant) in these terms:
“As you may be aware, the Council is in the process of dealing with and disposing of dormant appeals.
According to my records, there has been action on this appeal since the without prejudice meeting held in January 2006.
If there is no prospect of this appeal being enlivened, the Council invites your client to file a notice of withdrawal or discontinuance.”
There was no response.
On 30 April 2010 Council applied to this court for an order that the appeal be struck out for want of prosecution and for costs.
On 3 May 2010 Zehnder applied for leave to take a further step pursuant to r 389(2) of the Uniform Civil Procedure Rules (UCPR).
Both applications were heard together on 11 June 2010.
It is common ground that a number of the factors to be taken into account in considering an application to proceed after two years are set out in the judgment of Atkinson J (with whom McMurdo P and McPherson JA agreed) in Tyler v Custom Credit Corporation Limited [2000] QCA 178. In later cases, it has been emphasised that it is vitally important to provide the court with a satisfactory explanation (my emphasis) for the previous delay, an indication of the next step to be taken if leave is given, and an indication of the applicant’s prospects for success: Hall v RU & CE McColl Pty Ltd [2007] QCA 182.
As to this latter issue, Mr Wirz rightly points to the difference between appeal proceedings of this kind and civil proceedings to which the UCPR is primarily directed. In Jimbelung Pt Ltd v Beaudesert Shire Council and Others [2005] QPEC 032 at [11] Alan Wilson SC DCJ (as his Honour then was) said:
“The appellant also points, in my judgment appropriately, to differences between appeal proceedings of this kind and civil proceedings to which the UCPR are primarily directed. In many of the latter, recollection of factual events and such things as the preservation of documents and questions of credit are often important. In proceedings in this court the usual case involves the evaluation of a development proposal against relevant town planning law and provisions and it is extremely rare to find that questions touching historical matters, and memory and recollection are an issue.”
Zehnder has made no effort at all to address this issue in the affidavits, it relies in support of its application. Ms Lawson’s affidavit addresses only the reasons for delay and Mr Willis, the town planner responsible for the making of the original development application, deals only with compliance with the IPA provisions for notification of impact assessable development applications.
Council on the other hand, has produced evidence which Mr Heiner submits impacts on Zehnder’s prospects of its success which he argues are low. Jimbelung is not authority for the proposition that prospects of success will never be an issue in an application of this kind in this jurisdiction. As Atkinson J observed in Tyler:
“The court’s discretion is not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case.”
As I have noted, Zehnder has chosen to simply ignore the issue of its prospects of success. Mr Wirz argues that it would be impossible at this stage, in the absence of expert evidence, to make any meaningful assessment of his client’s prospects of success.
I agree with Mr Heiner that when compared with Council’s reasons for refusal, Zehnder’s so-called “grounds of appeal” disclosed in its notice of appeal say nothing at all about its prospects of success. The affidavit of Nicole Joyce senior town planner with Sunshine Coast Regional Council (the successor to the respondent), exhibits a copy of Council’s decision notice and the reasons for refusal are replicated in the notice of appeal. As an example of his point Mr Heiner referred to paragraph 5 of the reasons for refusal, namely, “Given the bulk and scale of the restaurant design, the development will dominate the escarpment, particularly when viewed from the south.”
According to Ms Lawson (the solicitor who acts for Zehnder), she has been told by Mr Zehnder that after the without prejudice meeting with Council in January 2006, a visual amenity expert was appointed who “finalised” the “amended design of the restaurant … in January 2007”. No such design has ever been submitted to Council. Ms Joyce (Council Planner), in her affidavit noted “ … the plans for the actual structure (which is intended to be constructed primarily of lime rendered straw bales) are insufficient”. She was not required for cross-examination and she notes (after reviewing the Council file) that the Council assessment process was an extended one after the original development application was lodged in March 2005.
As she notes, the Caloundra City Plan is the current planning instrument for the site which has not been amended since assessment of the application.
A number of the grounds of appeal are planning grounds. The site is contained in the Rural Precinct in the Planning Scheme and Ground 6 of the reasons state:
“The general area has a rule of character. The use proposed is not rural and nature, and therefore is out of character with the surrounding, and visually apparent landscape and land use.”
Ms Joyce notes that the decision to apply to strike out was part of an overall review of the Council current appeal list, which identified old and inactive appeals which had not been pursued by the appellant and for which the Council’s original position is unchanged.
She states (in paragraph 14):
“It is sometimes the case that, in the course of assessment, without prejudice communications and/or trial preparation, redesign (or indeed an entirely new design) of a proposal occurs, however, that is not, in my opinion, the proper role of the assessment manager and is not covered by the application fee. Sometimes applications are lodged on what can only be described as a speculative basis. Facilitation of a general concept is not the responsibility of the Council. If (contrary to the Council’s resolved position) this proposal were to be advanced towards possible approval, a huge amount of work would have to be done by both the appellant and by the assessment manager.”
Mr Heiner in his affidavit in support of the application to strike out the appeal says (at paragraph 7):
“I am informed by Kelly Porter, Principal Planner (Appeals Management) at Sunshine Coast Regional Council, that it is the Council’s wish to dispose of dormant and pending appeals, as there are ongoing responsibilities in relation to the review and oversight of such appeals, and budgetary considerations relating to the possibility that they may at sometime be enlivened. Accordingly the Council seeks to secure the withdrawal, discontinuance or striking out of such appeals.”
With this background in mind I now turn to what are in my opinion the central issues that arise in relation to these applications.
(a) Reasons for delay
Zehnder relies upon statements made by Joseph Zehnder to his solicitor. In effect, the reason for the delay is simple commercial expediency. Zehnder decided to put its efforts (and money) into another venture quite unrelated to the proposal. In my view, this is an entirely unsatisfactory explanation. Mr Zehnder does not allege that he did not have the money to engage experts and prosecute the appeal.
(b) Prospects of success
Bearing in mind the limitations referred to by Judge Wilson in Jimbelung, on the material before me Zehnder has limited prospects of success. It apparently saw merit in at least one ground of refusal by redesigning the proposal but chose not to negotiate with Council about that matter or provide Council with a copy of the redesign.
(c) The length of delay
Mr Wirz relied heavily on Jimbelung in which leave was given to take a step after a delay of six and a half years (not seven years as Mr Wirz submitted). That case is wholly distinguishable from the present case. As his Honour noted (paragraph 7) the appellant’s evidence established that it was “not a case in which the appeal has simply gone to sleep for many years”. Following Council’s refusal there were ongoing negotiations and further reports which continued over many years resulting in the intensity of the original proposal being substantially reduced. As against those circumstances, this appeal has rivalled Sleeping Beauty and now expects the court to act as Prince Charming and wake it up. In Jimbelung it was a number of submitter co-respondents who opposed the giving of leave in circumstances in which Council saw no reason for leave not to be given.
(d) Prejudice
In my view, the factors referred to paragraphs 7 and 14 of the affidavits of Mr Heiner and Miss Joyce respectively do disclose some prejudice to the Council if the appeal is to be re-enlivened. On the other hand, the striking out of the appeal now will not prevent Zehnder from making another development application with a design and reports which may address Council’s concerns.
This court is now very concerned about parties prosecuting appeals and applications expeditiously. Its appointment of an ADR Registrar and the significant rule changes to which earlier reference is made demonstrate this concern which is clearly in the public interest. The parties should not be permitted to lodge appeals or applications and then do nothing for many years unless there are satisfactory reasons for the delay.
Zehnder’s application is refused with costs. Council’s application to strike out the appeal is granted. I order Zehnder to pay Council’s costs of and incidental to the application and the appeal to be assessed on the standard basis.
2
2
2