Driesen v Gold Coast City Council & Anor [2014] QPEC 42 [2015] QPELR 4

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Driesen v Gold Coast City Council & Anor [2014] QPEC 42 PARTIES: KEITH DRIESEN (Appellant) v GOLD COAST CITY COUNCIL (Respondent) RIDGE PROPERTIES PTY LTD (Co-Respondent) FILE NO: 2203 of 2014 DIVISION: Planning & Environment Court PROCEEDING: Application ORIGINATING COURT: Planning & Environment Court at Brisbane DELIVERED ON: Judgment delivered ex tempore 1 August 2014 DELIVERED AT: Brisbane HEARING DATE: 1 August 2014 JUDGE: Everson DCJ ORDER: 1. Application dismissed. 2. Appeal struck out. CATCHWORDS: ENVIRONMENT AND PLANNING – APPLICATION – LEAVE TO APPEAL – where notice of appeal was not filed by submitter within time – where the respondent sent the submitter’s agent a copy of the decision notice while the submitter was overseas – where the submitter had been made aware through other means that a decision adverse to his submissions had been made - where the submitter was aware of his right of appeal – whether there are sufficient grounds for an extension of time to file the notice of appeal Sustainable Planning Act 2009 (Qld), s 462, s 497 Kadhem v Trinity Green Development Pty Ltd & Anor [2014] QPEC 36, applied -- 1 of 4 -- 2 COUNSEL: M J Batty for the appellant R S Litster QC for the co-respondent SOLICITORS: Thomson Geer for the appellant McCullough Robertson lawyers for the respondent Minter Ellison - Gold Coast for the co-respondent [1] This is an application seeking an extension of time for the filing of a notice of appeal pursuant to section 497 of the Sustainable Planning Act 2009 (“SPA”). The notice of appeal the subject of this application was filed on 11 June 2014 outside the submitter’s appeal period of 20 business days “after the decision notice or negotiated decision notice is given to the submitter” prescribed by s 462 of SPA. [2] It is not clear exactly how many business days beyond the submitter’s appeal period the notice of appeal was filed, however, a copy of the decision notice was sent by the respondent to the appellant’s agent under cover of a letter dated 17 April 2014, which was a Thursday. The agent in question is firm called Planit Consulting and the covering letter is addressed to its office at Level 1, 2247 Gold Coast Highway, Nobby Beach, which is within the area administered by the respondent. There is no evidence before me as to when the letter was received. The grounds stated in the application assert that the letter was received by the appellant’s agent “on or about 30 April 2014.” As the evidence before me stands, this is no more than a bare allegation, however. [3] Section 497 of SPA is in general terms: “In this part, if an action must be taken within a specified time, the court may allow a longer time to take the action if the court is satisfied there are sufficient grounds for the extension.” [4] Relevant matters to be considered in the exercise of the wide discretion conferred pursuant to s 497 were identified by Jones DCJ in Kadhem v Trinity Green Development Pty Ltd & Anor [2014] QPEC 36 at [11] in the following terms: “Typically in applications such as this the following matters require consideration: the explanation for delay; prejudice to the respondents; public [interest] considerations; the merits of the appeal and, consideration of fairness as between the applicants and the other parties.” [5] The proposed development is a 15 storey mixed use development, comprising a shopping centre, tavern, service industry, apartments and a resort hotel. The solicitor for the co-respondent deposes that the development site is currently the largest beachfront development site in the southern Gold Coast region. The appellant lives opposite and contends that the proposed development is unlawful, in conflict with various provisions of the respondent’s planning scheme and essentially constitutes an overdevelopment of the site. -- 2 of 4 -- 3 [6] After lodging an initial submission through Planit Consulting dated 23 September 2013 and a further submission through his solicitors dated 6 March 2014, the appellant departed Australia for the Philippines on 7 April 2014 and did not return until 30 June 2014. Although he alleges that he made arrangements for his personal assistant to check his letter box and PO box, he does not state what specific arrangements were made with Planit Consulting or another agent, Mr Hardy, who was assisting him in the matter. In particular, there is no specific evidence before the court as to what arrangements were made with Planit Consulting and Mr Hardy to keep the appellant informed of the outcome of the development application. [7] In any event, the appellant became aware of a media report stating that the development application had been approved (curiously the alleged media report in fact predated the decision which the respondent asserted was made on 14 April 2014 in the letter to the appellant enclosing the copy of the decision notice). The appellant sent an email to various people, including Mr Smith of Planit Consulting and Mr Hardy, on 11 April 2014 seeking advice about lodging an appeal. The appellant deposes that he did not receive any response from Mr Smith or Mr Hardy that indicated any of them had received “a notification from the Council of its decision to approve the development application.” I have before me, as exhibits 3 and 4, email correspondence which reveals that at some point, the appellant, apparently through his agents, received legal advice about the lodging of an appeal. The precise details of what the advice was and when it was received by the appellant are unclear. [8] Whilst the appellant also asserts that in the Philippines there was the risk of interference with his electronic communications as a consequence of “frequent blackouts lasting up to 24 hours”, whether this had any impact upon him reaching a decision as to whether or not to file a notice of appeal is unclear. Indeed, there are a number of areas where there has been a lack of candour on the part of the appellant in stating precisely why he did not instruct his agents or his lawyers to appeal a decision he states he was aware of from 11 April 2014. [9] Whilst it is clear that the appellant was anxious to ascertain whether the respondent had given him a copy of the decision notice, he simply does not state unequivocally whether he became aware of the decision notice prior to 3 June 2014 through other means. In circumstances where he was aware that he had a right of appeal and believed that a decision had been made adverse to the submissions he had made, in my view, the appellant was obliged to clearly explain to the court why he did not then proceed to exercise his appeal rights. In my view, it is not sufficient for him merely to say that he was abroad through his own choice at a time when a decision was likely, and that his agents did not give him a copy of the decision notice until 3 June 2014. It follows that I am of the view that there has not been a satisfactory explanation for the delay. [10] I note that the exercise of the discretion requires me to consider other matters and I now turn to the question of whether the respondents will suffer any prejudice. The respondent does not assert that it will suffer any prejudice and I find that it will not. As for the co-respondent, the solicitor acting for the co- respondent deposes to the fact that the co-respondent has spent $24,000,000 acquiring the development site and has subsequently engaged in various -- 3 of 4 -- 4 preliminary negotiations with various parties relevant to the proposed development. The co-respondent’s solicitor does not depose to any specific prejudice on the part of the co-respondent should the appellant be granted the extension of time it is seeking. However, self-evidently, the prospective appeal has the potential to frustrate the co-respondent’s program for developing the subject site. Whilst this is not specific prejudice it is certainly something which, in my view, comes within the concept of public interest considerations. [11] Developers who invest large sums in significant development projects need certainty in order to make commercial decisions. It is not in the public interest that large development projects are subject to the uncertainties of submitter appeals outside the submitter’s appeal period unless the considerations relevant to the exercise of the discretion pursuant to section 497 are rigorously applied and found to justify an extension of time for a submitter to appeal. Certainty to parties undertaking large projects is an important consideration. Where the prospective appellant has failed to clearly explain the reasons for the delay in appealing, as I have found on the facts before me, these public interest considerations will weigh heavily against the prospective appellant. [12] I now turn to the merits of the appeal, and on the material before me it cannot be said that the appeal lacks merit. A number of serious planning issues are raised and without a thorough investigation of the merits of the appeal through some sort of proceeding, the preliminary inquiry as to the merits of the appeal that is warranted by this application discloses an appeal of sufficient merit. [13] Finally, there is the question of considerations of fairness. The appellant engaged consultants to advance his position in opposition to the development application. He clearly, being someone who lives opposite the development site, has a legitimate interest in the outcome of the development application. However, the material before me, and, in particular, the email dated 11 April 2014 and the email which is exhibit 4, reveals that the appellant was very much weighing up whether he was committed to appealing the decision to approve the development application. In these circumstances, I am of the view that a decision refusing the application cannot be said to be unfair to the appellant. [14] Having regard to all of the specific factors set out above I am of the view that the application should be dismissed. [15] I dismiss the application and strike out the appeal. -- 4 of 4 --