Doyle v Brisbane City Council & Anor [2008] QPEC 84

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Doyle v Brisbane City Council & Anor [2008] QPEC 84 PARTIES: ANDREW DAVID McCABE DOYLE and KAREN LEIGH DOYLE (Appellants) v BRISBANE CITY COUNCIL (Respondent) and PUI WAH NG (Co-respondent by election) FILE NO/S: BD 1866 of 2008 DIVISION: Planning and Environment PROCEEDING: Application for extension of time to file Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 4 November 2008 DELIVERED AT: Brisbane HEARING DATE: 16 October 2008 JUDGE: Searles DCJ ORDER: APPLICATION DISMISSED COUNSEL: A. Skoien - Appellant B. Job –Respondent S. Ure – Co-respondent SOLICITORS: Nicholsons Solicitors - Appellant Brisbane City Legal Practice –Respondent HWL Ebsworth – Co-respondent -- 1 of 9 -- 2 [1] This is an application by the appellants under s 4.1.55 of the Integrated Planning Act 1977 (IPA) seeking an extension of time to 10 July 2008 to start this appeal under s 4.1.28 of IPA. Facts [2] On 19 April 2007, the co-respondent made application to the respondent for a development application for a development permit for a Material Change of Use for a multi-unit dwelling (three units) and a preliminary approval for building work for the partial demolition of an existing pre-1946 dwelling. That application was approved by the respondent’s delegate on 25 March 2008 subject to conditions. By letter dated 1 May 2008 the appellants were advised by the Council of its decision,1 advised that they were entitled to lodge an appeal with this court against the decision and that the appeal was to be lodged within a period of 20 business days. It is common ground that the time for the lodgement of the appeal expired on 4 June 2008. The appeal was filed on 10 July 2008, the date to which the extension of time is sought. In other words, the appellants were five weeks late in lodging the appeal. [3] Being dissatisfied with the condition imposed by the Council, by Appeal No. BD1167 of 2008 filed on 9 May 2008 the present co-respondent appealed against Conditions 6 & 12A of the approval. On 26 May 2008, the appellants elected to be joined as co-respondents by election in that Appeal. [4] They made the decision to become co-respondents by election rather than to themselves appeal the council decision because they expected that their opposition to the application would be ventilated as co-respondents. 2 At that point the appellants had retained solicitors. [5] On 27 June 2008, the respondent discontinued Appeal No. BD 1167 of 2008 and that same day the appellants were advised by the respondent and served with a copy of the Notice of Discontinuance.3 On 10 July 2008, the present appeal was filed as I have said five weeks out of time. 1 Affidavit Mr & Mrs Doyle, Exhibit AKD5 2 Affidavit ADM & KL Doyle, paragraph 13 3 Affidavit Danielle Bland, 27 June 2008, paragraph 3 -- 2 of 9 -- 3 The Law [6] The application is made under s 4.1.55 of IPA which provides: “4.1.55 Court may allow longer period to take an action 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.” [7] The principles relevant to the exercise of the discretion under s 4.1.55 were reviewed by Wilson SC DCJ in Mitchell v Brisbane City Council & Anor4 where His Honour said: “In Soyka v Hervey Shire Council [2002] QPEC 30, the appeal itself was, arguably, late but that occurred in circumstances where the appellant, who had been a submitter, had not received a Decision Notice. In the course of his judgment, Quirk DCJ considered s 4.1.55 and identified three considerations relevant to the exercise of the discretion arising under it: (a) Whether there is an acceptable explanation for the delay; (b) Whether it is fair and equitable in circumstances to extend time; and (c) Whether other parties would suffer any, and if so, what prejudice, militating against an extension being granted.” [8] In Mitchell v Brisbane City Council & Anor5 His Honour further said: “More recently, in Robertson v Brisbane City Council [2003] QPEC 077 and Butler v Kingaroy [2005] QPEC 049 [2006] QPELR 10, Judges of this court considered more expansive criteria which may attach to the phrase, “sufficient grounds” in s 4.1.55, extracted from the judgment of Branson J (as Her Honour then was) in the Federal 4 [2006 QPELR 798, paragraph 16 5 [2006] QPELR 798, paragraph 17 -- 3 of 9 -- 4 Court of Australia in Lindsay v Rose, Registrar of Immigration Review Tribunal 44 ALD 570 at 578 where guiding principles distilled by Wilcox J from earlier decisions in the Federal Court (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–50) were considered: (a) the prima facie rule is that proceedings commenced outside the ‘prescribed period’ will not be entertained…it is a pre-condition to the exercise of discretion…that application for extension show an ‘acceptable explanation for the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time; (b) action taken by the applicant other than by lodging an appeal is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non- curial means, has continued to make the other parties aware that he contests the finality of the decision, and a case where the other parties were allowed to believe that the matter has finally concluded; (c) any prejudice to a respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension; (d) however, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in -- 4 of 9 -- 5 the unsettling of other people or of established practises is likely to prove fatal to the application; (e) the merits of the substantive appeal are properly to be taken into account in considering whether an extension of time should be granted; (f) considerations of fairness as between the Applicant and other persons otherwise in a like position are relevant to the matter of exercise at the court’s discretion.” [9] The appellants submit that there are three relevant considerations going to the exercise of the discretion. The first is the question of whether or not the delay is significant accepting that a lapse of time alone is not an insuperable obstacle to the exercise of the discretion.6 Next is the question of whether some explanation has been given for the delay again accepting that a lack of explanation will not necessarily be fatal to the application.7 The third consideration is any prejudice suffered or likely to be suffered by the co-respondent. Delay [10] The appellants point to a letter from their solicitors to the co-respondent’s solicitors dated 19 June 2008 some six weeks after the receipt on 7 May 2008 of notification of the Council’s approval decision and their rights of appeal and some twenty four days after they had elected to become co-respondents in Appeal BD 1167 of 2008. [11] That letter sought information about without prejudice discussions between the co- respondent and the respondent Council and the current state of those discussions. It then set out what purported to be grounds of appeal the appellants intended to agitate in that appeal. Significantly, the grounds set out in that letter go well beyond the issues raised in Appeal BD 1167 of 2008 by the present co-respondent which 6 Queensland Trustees Limited v Fawkner [1964] Qd R 153 at 163 7 Queensland Trustees Limited v Fawkner [1964] Qd R 153 at 163 -- 5 of 9 -- 6 issues were limited to Conditions 6 & 12 (a) of the Council’s Decision Notice.8 Those conditions were in these terms: “6. The undercroft zone to the existing building shall remain unused, inaccessible (expect (sic) for maintenance purposes) and enclosed by Battens as shown on the approved drawings. … 12. (a) Retain all existing original fabric in the sections of the building which are not being demolished. This will include, but is not limited to, existing decorative detailing, balustrading, wall cladding, windows, doors, stairs and roof sheeting.” [12] The 19 June letter setting out the purported grounds of appeal to be replied upon attacks the approval decision of the Council which substantive decision was not in issue in that appeal. [13] The appellants rely upon the 19 June letter to show that they did not sit on their hands between receiving the Council Decision Notice on 7 May 2008 and filing the appeal on 10 July 2008. They say that the five weeks delay is not significant and that the co-respondent took approximately the same time to lodge Appeal BD 1167 of 2008. I accept that five weeks may, in appropriate circumstances, not represent significant delay but I see no relevance in time taken by the co-respondent to lodge his appeal other than to be representatively of what is common, namely that steps in any legal proceedings take time. There is no suggestion that the co-respondent’s delay occurred other than within the time the co-respondent had to appeal. [14] It seems to me the matter comes down to this. The appellants, at a time when they were being advised by solicitors, elected not to appeal the Council decision of approval but rather to elect to become co-respondents by election in the co- respondent’s Appeal BD 1167 of 2008 against that decision. They say that they did 8 Notice of Appeal BD 1167 of 2008 -- 6 of 9 -- 7 not appeal because of the expectation that they would be able to ventilate their concerns in their capacity as co-respondents. Given that the appeal was limited to a challenge to two conditions, that expectation was not well founded if the subsequent letter of 19 June 2008, setting out their much wider attack on the council’s approval decision,9 reflected the concerns they intended to ventilate at the appeal hearing. I infer that it did. [15] Mr Ure for the co-respondent submitted that there was no reasonable explanation for the delay and that it was a conscious decision by the appellants not to appeal the Council approval decision and they should have been aware that the co-respondent as appellant in Appeal BD 1167 of 2008 could at any time discontinue the appeal which in the result occurred.10 Prejudice [16] The co-respondent says that any extension will involve prejudice because the co- respondent will now have to resist the appeal and with Christmas/New Year looming there will be a delay of some six months before the appeal can be heard. It is appropriate here to mention that on the hearing of this application Mr Ure advised that a search of the court file showed that in Appeal 1866/08, the subject of this application there were five co-respondents who had filed Notices of Election to become co-respondents all of which were out of time. 11 [17] The application proceeded in their absence because their solicitor Mr N R Barbi had notified the parties before me that his clients those five co-respondents did not intend to make submissions at this application. That is relevant according to the co- respondent because it adds another dimension to the alleged prejudice because the co-respondent may now be forced to make a further application/s to the court in relation to those five co-respondents given that they have elected to be joined in an appeal with those elections themselves being out of time having been filed on 2 September 2008 in relation to the Notice of Appeal filed on 10 July 2008. [18] No other evidence of prejudice was put before me. It is important to bear in mind that any such prejudice must be connected with the delay the subject of the 9 See King v Charters Towers City Council & Ors [2004] QPELR 51 at p 53 10 See King v Charters Towers City Council & Ors [2004] QPELR 51 at p 53 11 Affidavit, Danielle Bland, dated 16 October 2008 -- 7 of 9 -- 8 application. The question arises whether the five week delay we are here dealing with would be the cause of the prejudice relied upon by the co-respondents. Had the appeal been put in on time the appeal would be five weeks ahead in its progress. Whether or not the abovementioned five co-respondents would have elected to be joined if the appeal had been filed in time, I do not know. I do not see that the five week delay can be said to be connected with that issue. [19] It is not as though the co-respondent’s position has altered irreversibly as was the case in Gregory v Brisbane City Council & Anor12 where during the period of delay contractual obligations crystallised in reliance upon the assumption that no appeal would be lodged by the applicant in that case. Likewise in Mitchell v Brisbane City Council & Anor13 the court was presented with a situation where the applicant/co- respondent had, relying upon the absence of an appeal, moved to demolish units on the property at some cost and had lost rental income which otherwise could have been saved. No such circumstances are present here and I am not persuaded that there is any relevant prejudice to the co-respondent. [20] None of the guiding principles governing the exercise of the discretion as are set out in this judgment are, of themselves, either entitling or disentitling factors but rather one of a variety of factors to be taken into account in determining whether in all the circumstances the discretion under s 4.1.55 has been enlivened. For example, the fact that a delay has not been explained is not necessarily fatal to an application. Likewise, the fact that there is no prejudice is not to result necessarily in the application being successful. All factors must be considered. [21] I am conscious of the view taken by Rackemann DCJ in Butler v Kingaroy Shire Council14 that, in the circumstances of that case, it was not appropriate to visit upon the applicant the error of the applicant’s advisors but one cannot avoid the reality of the present situation. That reality is that the appellants, having retained solicitors, made the conscious and deliberate decision when considering their response to Appeal BD 1167 of 2008 not to appeal the Council’s substantive approval decision but rather to elect to become co-respondents to that appeal which was limited to the Council’s conditions attaching to the relevant approval. They should have been 12 [1999] QPELR 138 13 [2006] QPEC 086 14 [2006] QPELR 10 at 12 -- 8 of 9 -- 9 aware of the ramifications of that decision, one of which crystallised namely the discontinuance of the appeal leaving them in the cold without any right of appeal within time. Their solicitors’ letter of 19 June to the co-respondent’s solicitors reflects a misconception of their view that their expectations would be satisfied in that appeal by virtue of their status as co-respondents. [22] I say that because they clearly thought that, in that appeal, they could agitate matters beyond the issues the subject of the appeal. To achieve that, they would have needed to be appellants to enable the whole of the Council’s decision to be challenged. [23] In all the circumstances I am not satisfied that sufficient grounds for an extension have been made out so as to enliven my discretion and I accordingly dismiss the application. -- 9 of 9 --