BTS Properties (Qld) Pty Ltd v Brisbane City Council [2015] QPEC 2 [2015] QPELR 391

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: BTS Properties (Qld) Pty Ltd v Brisbane City Council [2015] QPEC 2 PARTIES: BTS PROPERTIES (QLD) PTY LTD (appellant) v BRISBANE CITY COUNCIL (respondent) and MICHAEL O’BRIEN (first co-respondent by election) and CBD BRISBANE PTY LTD (second co-respondent by election) and FRANK RAYMOND DORRSTEIN and MARGARET JOAN DORRSTEIN (third co-respondents by election) and PETER BERNARD BYRNE and SUELLEN MARGARET BYRNE (fourth co-respondents by election) and GMSM INVESTMENTS PTY LTD (fifth co-respondent by election) and MARGARET ELIZABETH DAIGA (sixth co-respondent by election) And GARY GIBSON and MICHELLE GIBSON (seven co-respondents by election) FILE NO/S: 4099/14 DIVISION: Planning & Environment PROCEEDING: Application in pending proceeding -- 1 of 9 -- 2 ORIGINATING COURT: Planning & Environment Court, Brisbane DELIVERED ON: 11 February 2015 DELIVERED AT: Brisbane HEARING DATE: 29 January 2015 JUDGE: Rackemann DCJ ORDER: The time for the sixth, seventh and male fourth co-respondents by election to elect to become parties be extended to the date upon which each did in fact elect. The sixth, seventh and male fourth co-respondents by election pay the appellant’s costs of each of the applications in pending proceeding. CATCHWORDS: ENVIRONMENT AND PLANNING – APPLICATION – where the Co-Respondents by election seek extension of time within which to file the notices of election – whether sufficient grounds – where the interests of justice lie – whether discretion ought be exercised COUNSEL: SM Ure for the Appellant Solicitor for the Respondent Solicitor for the First Co-respondent by election DD Purcell for the Second, Third, Fourth, Sixth and Seventh Co-respondents by election SOLICITORS: MacDonnells Law for the Appellant Brisbane City Legal Practice for the Respondent Milne Legal for the First Co-respondent by election JB Stevenson & Company Solicitors for the Second, Third, Fourth, Sixth and Seventh Co-respondents by election -- 2 of 9 -- 3 [1] The appellant was the unsuccessful applicant for a development approval to facilitate a 6 unit residential development on land at 9 Griffith St New Farm. It applies to strike out notices of election filed out of time by the sixth and seventh and male fourth co-respondents by election. Those co-respondents by election cross-apply for an extension of time within which to file the notices of election. [2] It has been accepted that the fifth co-respondent by election as well as the female fourth co-respondent by election had no right to elect to become parties to the appeal and they have filed notices of withdrawal of selection to co-respond. The first, second and third co-respondents by election duly elected to be parties. No issue is taken with their continued participation in the appeal. [3] The time for electing to become a respondent is within 10 business days after notice of the appeal is given.1 The election is effected by following the Rules of Court which, in turn, require a notice of election to be filed within time and served.2 The notices of election of the fourth, sixth and seventh co-respondents by election were filed on 20 November 2014, 21 November 2014 and 3 December 2014 respectively. There was a difference between the parties as to whether the last day for electing to become a co-respondent was 17 or 18 November 2014, but it is unnecessary to pause on that because it was not suggested that anything turns on which of those it was. [4] Pursuant to s 497 of the Sustainable Planning Act 2009, the court has a discretion to allow a longer time for, relevantly, electing to become a co-respondent, if the court is satisfied that there are sufficient grounds for the extension.3 The debate was as to whether sufficient grounds had been established and as to whether the court should 1 See s 488 of the Sustainable Planning Act. 2 R. 14 3 Non-compliance with the rules of court is also excusable – see r. 5. -- 3 of 9 -- 4 exercise its discretion. The discretion must, of course, be exercised judicially. An extension of time is not given just for the asking. The guiding principle is the interests of justice. [5] The explanation for non-compliance with the time limit is a relevant consideration. Demonstration of an adequate explanation is not, however, a prerequisite to the relief sought by the relevant co-respondents by election. [6] The fourth co-respondents by election reside at unit 602/57B Newstead Terrace, Newstead and have a postal address of P.O. Box 546, New Farm. It is their ownership of a different property, namely unit 1 in a complex known as “Solitaire” at 5 Griffith Street, New Farm, next to the site the subject of the contentious development application, which explains their interest in the development application and their desire to be co-respondents in this appeal. It is that address which they understandably, but mistakenly, used as their address in the submission against the development application. [7] It was to unit 1 in Solitaire to which notice of the appeal was sent. At the time the fourth co-respondents by election did not live there, and the property was not tenanted. It was vacant. Further, given the proximity of the G20 summit in Brisbane, they had decided to take a vacation. It was in this context that the notice which had been sent to them at their unit in Solitaire did not get to them for several weeks. [8] The action of the fourth co-respondents by election to instruct solicitors to file a notice of election as soon as possible was ultimately prompted by information given to them by another unit owner in Solitaire when they arrived back from their vacation. They have no previous experience in matters of this kind. -- 4 of 9 -- 5 [9] The sixth co-respondent by election is an owner/occupier of another unit in Solitaire. Her mail address is to a post office box. She was overseas from about 10 October 2014 to 10 November 2014. On her return she left for Noosa on 12 November 2014 to attend to an issue arisen with one of her properties there. She returned to Brisbane on 19 or 20 November 2014. Whilst away, she arranged for her mail to be collected by her son and taken to her accountant, with instructions that mail which appeared to contain accounts, which might require payment, should be opened but that mail which appeared to be personal should not. She had not been able to collect her mail from the accountant between the time she arrived back from overseas and the time she left for Noosa. The letter containing the notice of this appeal was not opened and so was not seen by the sixth co-respondent by election until she checked her mail after 20 November 2014. In the meantime, whilst in Noosa, she was contacted by other members of the body corporate for Solitaire who informed her about the appeal and her need to take action if she wished to elect to become a respondent. She then promptly instructed solicitors to file her notice of election as soon as possible. [10] The seventh co-respondents by election reside in yet another unit in Solitaire. That unit is owned by the company which was fifth co-respondent by election, as trustee of a discretionary trust. Although their notice of election was not filed until 3 December 2014, the greater part of the period by which the filing was late is explained by their mistake in causing a notice of election to be filed in the name of the trustee owner of the unit, rather than in their own names as the persons who made the submission. The notice of election in the name of the trustee company was also filed late but only by a relatively short time, it having been filed on 20 November 2014. -- 5 of 9 -- 6 [11] The explanation for having not had any notice of election filed until 20 November 2014 begins with the seventh co-respondents by election receiving the notice of appeal only on the Thursday prior to their departure for a holiday on Lord Howe Island which commenced on Saturday 1 November. There was no mobile phone or internet services available at their holiday destination, and so they could do nothing until their return on 9 November 2014. There was, however, at that stage, still sufficient time to file a notice of election within time. The male seventh co- respondent by election wasted several days seeking advice from the manager of the body corporate of Solitaire, thinking it would be appropriate for the body corporate to become a party. Having been advised that that was impractical, it “then appeared to us that all members had to act individually”. They spoke with Frank Dorrstein who had had JB Stevenson & Co Solicitors attend to filing a notice of election for he and his wife within time. This prompted instructions to be given to the same solicitors to also file a notice of election, albeit that the notice was a little late and in the wrong name. [12] The explanations proffered have areas of weakness. Whilst the delays in filing notices of election were, in each case (and to varying extents), blamed on people being on vacation, counsel for the appellant pointed to the following passage of the reasons of Robin QC DCJ in Demiscto Pty Ltd v Brisbane City Council4: “ … In modern conditions, it is not acceptable that an entity become effectively incommunicado and exempt from service by closing its office or refraining from collecting mail at the address given for delivery of mail for a month to provide the luxury of a holiday. It is necessary that arrangements be put in place to receive important communications without subjecting the senders of them to inappropriate delay.” 4 [2008] QPEC 22. -- 6 of 9 -- 7 [13] Those comments were made in course of rejecting an argument that a notice of the appeal was not “given” until the recipients returned from holidays. There was no application for an extension of time in that case. [14] It appears that the sixth co-respondent by election at least endeavoured to put appropriate arrangements into place for non-personal mail to be received and dealt with. Her instructions that only mail which appeared to contain accounts be opened was, however, too narrow to ensure that other important correspondence (including notice of the appeal) was opened and promptly dealt with. [15] The others do not appear to have had appropriate arrangements in place for dealing with correspondence in their absence. The fourth co-respondents by election, having nominated their address as being unit 1 in Solitaire, should have anticipated that any correspondence in relation to the subject matter of their submission would be sent to that address and arrangements should have been made to ensure that such correspondence came to their attention. [16] The explanation given by the seventh co-respondents by election for failing to have given instructions in sufficient time for a notice of election to be filed within time is the weakest of the three. Their notice was received before they went on holidays and they returned in sufficient time to obtain appropriate advice as to what they needed to do to exercise their rights in a timely manner. [17] Whilst there are some deficiencies in each of the explanations which have been proffered, they are understandable and, I accept, genuine. They point to the time limit having been missed by virtue of a combination of what might generally be described as ignorance, confusion, misadventure and mismanagement, rather than wilful disregard. -- 7 of 9 -- 8 [18] The notices of election of the fourth and sixth co-respondents by election were filed very soon after the expiration of the time limit. While the notice of election of the seventh co-respondents by election was filed at a later point, they had caused an earlier notice of election (in the name of the wrong entity) to be filed very shortly after the expiration of the time limit. The delay in filing the notices was not lengthy and the appeal has not proceeded in any significant way in the interim. It should be noted, however, that the application for extension of time was not made until 28 January 2015, in response to the appellant’s application. [19] Each of those who seek an enlargement of time own and/or occupy a unit in a building adjoining the development proposal. They have an obvious interest in the development application the subject of the appeal. The appellant did not suggest to the contrary. If time was not enlarged, they would be prejudiced by not being able to participate as parties in the appeal which will determine the fate of that development application. [20] The appellant, on the other hand, whilst obviously having to contend with more parties if an extension is granted, did not point to any prejudice it would suffer in being able to run its case in that event. Further, this is not a case of submitters wishing to commence an appeal out of time against an approval which the developer would otherwise be free to act upon and in reliance on which the developer had, in the meantime, altered its position in some material respect. Rather, it is a case in which the appellant seeks to overcome the Council’s refusal of its development application. It bears the onus in the appeal. The Council is a respondent to the appeal and there are other co-respondents by election who have duly elected and have a right to be heard in the appeal irrespective of whether time is enlarged to allow the sixth, seventh and male fourth co-respondents by election to -- 8 of 9 -- 9 remain parties. The consequence for the appellant is not that it will face a proceeding which it might otherwise have avoided, but that it will have to contend with some additional parties in prosecuting its appeal. [21] Not without some hesitation, particularly in the case of the seventh co-respondents by election, I am, on balance, satisfied that there are sufficient grounds for granting the extensions sought and that it is in the interests of justice to grant that relief. It would not, in the circumstances, be unfair or inequitable to do so. The appellant should, however, be compensated for the costs it has incurred in the subject applications by reason of the non-compliance by the relevant co-respondents by election with the time limit. That non-compliance led to the understandable application brought by the appellant and saw the relevant co-respondents by election responding with their own application to seek an indulgence by way of a favourable exercise of discretion under s 497 of the Act. Accordingly, the sixth, seventh and male fourth co-respondents by election will be ordered to pay the appellant’s costs of each of the subject applications in pending proceeding. -- 9 of 9 --