Cannon Hill Investments Pty Ltd & Anor v Brisbane City Council & Anor [2022] QPEC 46

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cannon Hill Investments Pty Ltd & Anor v Brisbane City Council & Anor [2022] QPEC 46. PARTIES: CANNON HILL INVESTMENTS PTY LTD AND AUSTRALIAN COUNTRY CHOICE PRODUCTION PTY LTD TRADING AS AUSTRALIAN COUNTRY CHOICE GROUP (Applicant) v BRISBANE CITY COUNCIL (First Respondent) AND K63 PTY LTD (Second Respondent) FILE NO/S: 2133/22 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 9 November 2022 DELIVERED AT: Brisbane HEARING DATE: 9 November 2022 JUDGES: Everson DCJ ORDER: 1. Application dismissed; and 2. Appeal 2116/22 struck out. CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – application to extend time to file a notice of appeal – whether there is an adequate explanation for the delay LEGISLATION: Planning and Environment Court Act 2016 (Qld) Planning Act 2016 (Qld) CASES: Driesen v Gold Coast City Council & Anor [2015] QCA 85 Supreme Renovators Pty Ltd v Logan City Council [2020] QPELR 805 -- 1 of 9 -- 2 COUNSEL: B Job KC and J Ware for the Applicant T Sullivan KC and R Yuen for the First Respondent M Batty and J Bowness for the Second Respondent SOLICITORS: HopgoodGanim for the Applicant Brisbane City Council Legal Service for the First Respondent Thynne + Macartney for the Second Respondent -- 2 of 9 -- 3 Introduction [1] This is an application pursuant to s 32 of the Planning and Environment Court Act 2016 (Qld) (“PECA”) seeking an order that the applicant be permitted to extend the time to file a notice of appeal to 30 August 2022. [2] Pursuant to s 32(2) of the PECA, the Court may extend the period for filing a notice of appeal “if satisfied there are sufficient grounds for the extension”. The term “sufficient grounds” is not defined in the PECA. Clearly a wide discretion is conferred on the Court in exercising this power. The fact remains however, that the appeal periods provide certainty for parties and as Williamson KC DCJ observed: “They are not to be treated as guidelines, or as aspirational. Nor should they be approached as if an extension of time is there for the asking where a respondent to such a request would suffer no prejudice”.1 [3] In Driesen v Gold Coast City Council & Anor,2 the Court of Appeal noted that relevant considerations in the exercise of this discretion, pursuant to an equivalent provision in the Sustainable Planning Act 2009 (Qld), included: 1. the explanation for the delay; 2. prejudice to the respondents; 3. public interest considerations; 4. the merits of the appeal; and 5. considerations of fairness as between the applicant and the other parties.3 Subsequently, Morrison JA observed that an application for extension of time “would normally call for the explanation to be given to the court as fulsomely as could possibly be done”.4 [4] Both the first respondent and the second respondent oppose the application. [5] The applicant operates an abattoir and associated factory through a number of companies at 117 Colmslie Road, Cannon Hill (“the meat works”). It has consistently 1 Supreme Renovators Pty Ltd v Logan City Council [2020] QPELR 805 at 810 [41]. 2 [2015] QCA 85. 3 At [14] per Holmes JA. 4 Ibid at [55]. -- 3 of 9 -- 4 engaged in litigation in this Court in recent times opposing non-industrial development in the vicinity of the meat works, and in particular in what is known as the Rivermakers site. It has an ongoing arrangement with a firm of town planners, Reel Planning, to “keep a working brief” in relation to development applications lodged. It also retained the firm of Kinneally Miley Lawyers over many years to provide legal services in this regard. [6] The second respondent had for some time been operating a business in part of the Rivermakers site. This resulted in the first respondent issuing a show cause notice and an enforcement notice to the second respondent. Thereafter, the second respondent lodged a development application seeking a development permit for a material change of use for Hardware and trade supplies (“the use”) in respect of the site occupied by it at 500 Lytton Road, Morningside (“the development application”). The applicant made a properly made submission in respect of the development application on 17 March 2022, authorised by Mr Ovenden, director of Reel Planning. Ultimately the development application was approved by the first respondent by a Negotiated Decision Notice dated 20 July 2022 (“the Negotiated Decision Notice”). [7] Pursuant to s 229(3)(g) of the Planning Act 2016 (Qld) (“PA”), the applicant could file a notice of appeal within 20 business days after being given notice of the Negotiated Decision Notice. It is uncontentious that this occurred on 20 July 2022, that the appeal period therefore expired on 18 August 2022, and that the applicant did not file a notice of appeal until 30 August 2022. The notice of appeal was therefore filed eight business days late. [8] The second respondent has continued to operate the use throughout the development assessment process and continues to do so. Explanation for the delay [9] At the outset, it is important to emphasise the need for candour and fulsomeness on the part of the applicant when providing an explanation for the delay.5 [10] Although the submission dated 17 March 2022 was authored by Mr Ovenden, it stated that it was made by the applicant and nominated by the applicant’s address, including 5 Driesen v Gold Coast City Council & Anor [2015] QCA 85 at [53]-[61]. -- 4 of 9 -- 5 the email of Mr Foote, the director of Corporate Affairs of the applicant. Mr Foote has sworn three affidavits in this proceeding. In his first affidavit, filed on 12 September 2022, Mr Foote deposes that although a copy of the Negotiated Decision Notice had been emailed to him on 20 July 2022, he was not aware of it until 29 August 2022 when he searched his email folders and discovered that the email had been blocked and sent to his junk folder. The significance of this fact is somewhat diminished by the evidence of Ms Adamson, the town planner employed by Reel Planning, who was responsible for the actions associated with the watching brief referred to above. She deposes in her affidavit of the same date that she emailed the applicant on 27 July 2022 informing of it of the existence of the Negotiated Decision Notice. [11] A copy of this email was eventually put into evidence via a further affidavit of Mr Foote, filed on 1 November 2022, in a redacted form. Significantly, it was not sent to Mr Foote on this date, but to another senior officer of the applicant to whom Ms Adamson provided updates, Mr Beirne. Relevantly, it states: “I’ve updated the latest summary Greg provided (from 06.07.22) on the status of the BMI application. Can you please review and we can discuss in the meeting this afternoon…” [12] Thereafter, a panel appears referring to the development application in the following terms: “MATTER CURRENT STATUS ACC ACTIONS REEL PLANNING ACTIONS KINNEALLY MILEY ACTIONS OTHER PERSONS ACTIONS …2. THE DEPOT a) Stone3 DA - Applications representations (to allow for orders to be dispatched direct to the public from the site) approved by way of a Negotiated Advise whether ACC wishes to appeal Council’s approval N/A Possible lodgement of appeal N/A -- 5 of 9 -- 6 Decision Notice issued on 20.07.22 BMI succeeded - Applicant appeal period ends 18.08.22 - Submitter appeal period will be 19.08.22- 15.09.22 (if the applicant doesn’t waiver (sic)their appeal period, otherwise submitter appeal period will be sooner)” [13] Ms Adamson concedes that the appeal period did not, in fact, extend to 15 September 2022. As noted above, the appeal period expired on 18 August 2022. [14] Mr Foote deposes that this email was resent by Mr Ovenden two days later on 29 July 2022 to a number of parties, including Mr Foote, and Mr Kinneally and Mr Coe, partners of Kinneally Miley Lawyers. Mr Foote in yet another affidavit, filed on 13 October 2022, deposes to relying upon this email “in relation to the commencement of the appeal period”. He also deposes that at that time, Kinneally Miley were advising the applicant “in relation to planning and environment matters associated with the Rivermakers site,” and that he relied upon their advice “in relation to legal matters”. [15] It was not until the end of August that further developments occurred. In his affidavit, filed 12 September 2022, Mr Kinneally deposes to attending a conference with representatives of the applicant on 24 August 2022 to provide an initial briefing to HopgoodGanim who had just been retained by the applicant “in respect of planning and environment matters associated with the Rivermakers site”. Subsequently, he -- 6 of 9 -- 7 deposes that on 29 August 2022, he asked Mr Coe “whether there were any other appeals coming up in respect of the Rivermakers site that we needed to address”. He goes on to state that Mr Coe then drew his attention to the email from Ms Adamson dated 27 July 2022. This led to inquiries being undertaken which led to the applicant locating the Negotiated Decision Notice and filing the notice of appeal the following day. [16] Mr Kinneally deposes that he understood the appeal period ran from 19 August 2022 to 15 September 2022. On behalf of the applicant, it is submitted that in her email Ms Adamson indicated a longer appeal period, extending to 15 September 2022, applied and that this was relied upon by the solicitors then acting for the applicant. It is submitted that the applicant was similarly reliant on this advice from Ms Adamson and it had been let down by its advisers. [17] The difficulty with this purported explanation for the delay is the absence of any unequivocal statement by Ms Adamson that the appeal period extended to 15 September 2022. The email indicated that the period could be shorter and sought advice as to whether the applicant wished to appeal the Negotiated Decision Notice. It also indicated that Kinneally Miley would possibly need to lodge an appeal. This email also revealed that it was initially sent to Mr Beirne and that it was to form the basis for discussions in a meeting to be held that afternoon. No account of this meeting appears in evidence before me. Mr Beirne has not provided any evidence at all. Mr Coe, the other partner at Kinneally Miley who was providing legal services to the applicant and a recipient of the email on 29 July 2022, has also not provided any evidence of his version of events or his understanding of the circumstances surrounding the lodging of a prospective notice of appeal. [18] Accordingly, not only has Mr Foote been somewhat coy in purporting to give an explanation for the delay, but there is a notable absence of fulsomeness on the part of the applicant in omitting to provide explanations from Mr Beirne and Mr Coe who were directly involved in discussions concerning the advice contained in the email authored by Ms Adamson and the steps which the applicant may wish to take following the development approval as a consequence of the Negotiated Decision Notice. -- 7 of 9 -- 8 [19] The applicant is a sophisticated commercial entity which had a history of regularly opposing developments in the vicinity of the meat works and it had retainers with both Reel Planning and Kinneally Miley Lawyers to assist it to proactively pursue its perceived interests in this regard. These are factors which lead me to view the evidentiary omissions from the applicant’s material as consequential. [20] I therefore conclude that the applicant has not provided a satisfactory explanation for the delay. Prejudice to the respondents [21] Neither the first respondent nor the second respondent submit that they will suffer any prejudice as a consequence of the relief sought by the applicant in this application. Public interest considerations [22] It has not been demonstrated to me that any public interest considerations assume any particular significance in the determination of this application. Merits of the appeal [23] I accept the submissions of the parties that in determining the application, it is not appropriate for the Court to undertake an analysis of the merits of the appeal, except in circumstances where the grounds of appeal are either clearly frivolous or vexatious on the one hand or unarguably meritorious on the other. I simply note that in the notice of appeal, the applicant raises legitimate planning issues relating to traffic and access and reverse amenity, as well as various relevant matters. It therefore cannot be said the appeal is without merit. Considerations of fairness [24] It has not been demonstrated to me that it will be unfair to the applicant to dismiss the application. As it has done for some time, the applicant will continue to conduct its business at the meat works and the second respondent will continue to conduct the use from part of the Rivermakers site. -- 8 of 9 -- 9 Conclusion [25] The applicant has failed to demonstrate sufficient grounds for an extension of the appeal period to enable it to file the notice of appeal. Appeal periods provide certainty for parties in the context of orderly development in this State. On the facts before me, the applicant has not provided a satisfactory explanation for the delay in filing the notice of appeal and accordingly the application is dismissed and appeal 2116/22 is struck out. -- 9 of 9 --