Davnat Developments 7 Pty Ltd & Anor v Council of the City of Gold Coast [2008] QPEC 62

1 PLANNING and ENVIRONMENT COURT OF QUEENSLAND CITATION: Davnat Developments 7 Pty Ltd & Anor v Council of the City of Gold Coast [2008] QPEC 62 PARTIES: DAVNAT DEVELOPMENTS 7 PTY LTD and MALMAR DEVELOPMENTS 7 PTY LTD (Applicants) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) FILE NO: 307 of 2008 PROCEEDING: Application to extend time for appealing against Infrastructure Change Notice. DELIVERED ON: 28 August 2008 DELIVERED AT: Southport HEARING DATE: 21 August 2008 JUDGE: C.F. Wall Q.C. ORDER: Application granted, no order as to costs CATCHWORDS: TOWN PLANNING - PRACTICE – APPEAL - out of time - extension of time - relevant considerations - whether costs of application payable by applicant for extension. Legislation referred to: Integrated Planning Act 1997, ss 3.5.15 (2) (m), 4.1.23 (2) (e), 4.1.36 (4), 5.1.8 (1). King v. Charters Towers City Council [2004] QPELR 47 at 53-54 NOTF; Mitchell v. Brisbane City Council [2006] QPELR 798 at paragraphs [16]-[23] FAA; Marcelawn Pty Ltd v. Townsville City Council [1998] QPELR 35 at 39 FAA; Jackamarra v. Krakouer [1998] 195 CLR 516 at 521- 522 and 540-541 FAA. COUNSEL Applicant - Mr B Cronin Respondent - Mr N Loos (solicitor) SOLICITORS: Applicant - Cronin Shearer Lawyers Respondent - Corrs Chambers Westgarth Lawyers -- 1 of 14 -- 2 HIS HONOUR: This is an application for an order pursuant to section 4.1.55 of the Integrated Planning Act extending the time for filing the notice of appeal in this matter to 3 June 2008. The application is opposed. The time for filing the notice of appeal expired on 26 May 2008. The grounds of the application and the facts and circumstances relied on in support of it are as follows: "1. The applicants are the owners of land described as Lot 130 on SP207806 at 43-53 Days Road, Upper Coomera in the State of Queensland and within the Local Government Area of the City of Gold Coast. 2. On or about 22 December 2006 the appellants by their agents, Hooker Design Consultants, lodged a development application with a private certifier, Express Plan Approval Services Pty Ltd, for a development permit for building work for a warehouse on the said land. 3. On 18 April 2008 the said private certifier issued a decision notice for the said development permit to carry out building work. 4. By letter dated 23 April 2008 the respondent issued to the appellants an infrastructure charge notice with respect to the land. The notice was received by the applicants on 24 April 2008. 5. The Infrastructure Charge Notice imposed infrastructure charges (totalling $1,060,388.85) with respect to: (a) recreation facilities network infrastructure; (b) stormwater network infrastructure - quality; (c) stormwater network infrastructure - quantity; -- 2 of 14 -- 3 (d) transport network infrastructure - local; (e) transport infrastructure - state. 6. The infrastructure charge notice was silent as to appeal rights to the Court and time limitations for any such appeal." (Unlike a decision notice there is no statutory requirement for the council to include details of appeal rights or the appeal period in an Infrastructure Charge Notice). "7. By letter dated 28 April 2008 the said private certifier, at the appellants' request (on or about 24 April 2008), requested that the respondent recalculate the infrastructure charges. 8. On 7 May 2008 the said private certifier received a letter from the respondent dated 1 May 2008 stating that the Infrastructure Charge Notice 'was issued in accordance with the Integrated Planning Act 1997 and council's Priority Infrastructure Plan and as such is valid and payable by the due date.'" (This letter was silent as to appeal rights to the Court and time limitations for the appeal). "9. On 8 May 2008 the applicants engaged George Sarikas, a priority infrastructure planning Consultant, to assess the validity and quantum of the infrastructure charges. 10. The report of George Sarikas was received on 26 June 2008. 11. On 27 May 2008 the applicants instructed Cronin Shearer Lawyers to advise concerning the validity and quantum of the charges. 12. On 2 June 2008, Cronin Shearer Lawyers, after consultation with counsel, advised the applicants of their appeal rights and the time limitation for such appeal" (and that the time for appealing had expired). -- 3 of 14 -- 4 "13. On 3 June 2008 the applicants filed their notice of appeal." (This was 6 working days after 26 May). "14. No prejudice has been suffered by the respondent because of the delay in bringing the appeal." The letter referred to in paragraph 7 was sent as a result of a request by David Turner, a director of Davnat Developments Pty Ltd, that a letter be sent to the council requesting they re-assess the infrastructure charges "as we disputed owing such charges." The letter dated 28 April 2008, is in the following terms: "Re: Infrastructure Charges for 43 Days Road, Upper Coomera - Lot 130 on RP207806. We, A1 Express Planning Approval Services Pty Ltd act as private certifiers for proposed warehouse units at the abovementioned lot. Reference is made to letter titled, 'Applicant Advice of Infrastructure Charges - Site Address: 43-53 Days Road Upper Coomera dated 23 April 2008.' Under this letter, the infrastructure charges are calculated under Part 8, Division 2 of the Gold Coast Planning Scheme being the Priority Infrastructure Plan. However, we wish to make note of the following: - The building application for the proposed warehouse units was lodged to this office on the 22 December 2006; - Pursuant to section 143 of the Building Act 1975, a Notice to the Local Government that a private certifier has been engaged was forwarded to Council on the 23 December 2006; - Pursuant to section 30(1)(a) of the Building Act 1975, building assessment work must be carried out under IDAS; -- 4 of 14 -- 5 - Under IDAS and pursuant to section 3.5.3 of the Integrated Planning Act 1997, it states, "a reference to a code, planning instrument, law or policy is a reference to a code, planning instrument, law or policy in effect when the application was made. This means for the assessment of buildings works, the applicable codes, planning instruments etc are those in effect when the (building) application was made." - It is noted that the Priority Infrastructure Plan came into effect on the 8 January 2007, after the building application was lodged to this office. As such, it is our considered opinion that as the building application for building works was received by this office prior to Part 8, Division 2, Priority Infrastructure Plan of the Planning Scheme coming into effect, this Part of the planning scheme is not applicable in the assessment of building works. This extends to the applicability of the Priority Infrastructure Plan under this building application for the proposed building works to which it is not applicable. In this light, it is requested that Council review the infrastructure charges of the proposed warehouse units. We await for Council's re-calculation of infrastructure charges. If you have any questions, please call this office on 55648055." By letter dated 1 May 2008 the council responded in the following terms: -- 5 of 14 -- 6 "I write in response to your letter dated 28 April 2008 requesting a review of infrastructure charges for the abovementioned development. I advise that the infrastructure charge notice dated 23 April 2008 was issued in accordance with the Integrated Planning Act 1997 and Council's Priority Infrastructure Plan and as such is valid and payable by the due date." This was a particularly unresponsive and unhelpful reply to the letter dated 28 April 2008. The notice of appeal seeks orders that the Infrastructure Charge Notice be set aside or, in the alternative, amended for the following reasons: "(a) The charges are unlawfully imposed as they relate to a development approval for which the application was made prior to the commencement of the Infrastructure Charges Schedule. (b) The methodology to establish the charges in the Infrastructure Charges Schedule is incorrect; and (c) The charges have been calculated erroneously." The applicants have, by letter dated the 20 August 2008 from their solicitors, provided the following further and better particulars of paragraph 6 of the notice of appeal: "(a) The development approval to which the application relates was the subject of a Decision Notice made on 8 January 2008. The development approval was varied by amended plans on 18 April 2008. The Council imposed the Infrastructure Charges Notice on 24 April 2008. The -- 6 of 14 -- 7 Infrastructure Charges Notice was not given within 10 business days of the Council receipt of the approval, as required by section 5.1.8(2)(b) of the Integrated Planning Act 1997. (b)(i) The Recreational Facilities Network charge has been calculated by reference to Table 2-27 on the area of land rather than the area of the building in accordance with Table 2-20 SDU conversion rates for different development types and as such the charge is incorrectly calculated. (ii) The planning scheme prohibits the erection of a building of the size anticipated by Table 2-27. (c) The Stormwater Infrastructure Charge has been based on .9 of the area of land of 3.7539 hectares rather than .9 of the area of the site of 2.66475 hectares. (d) The Transport Infrastructure Network Charge has been calculated on the size of the building of 15,563m² by 0.05 trip ends per day per square metre which equates to 778.15 trip ends. The correct basis of the charge should have some relevant [sic] to the number of trips that might reasonably be made to the permitted use. (e) No reasonable Council would have imposed any one or all of those charges." The decision notice dated 8 January 2008 approved building work as follows: "Warehouse - retaining walls and up to slab stage only." The decision notice dated 18 April 2008 (following the amended plans) approved building work as follows: -- 7 of 14 -- 8 "Warehouse - office." In his affidavit filed by leave on 21 August 2008 Mr Turner deposes: "4. As a result of receiving the Decision Notice for building work on or about 18 April 2008 I commenced construction of the warehouse building comprising some 15,563m² total use area. The estimated cost of construction of that building is to be $11,767,700.00 excluding GST. 5. Prior to commencing construction I entered into an Agreement for Lease with FLSmidth Krebs Australia Pty Ltd, a multinational engineering company, to rent approximately one third of the building for a term of five (5) years from the commencement date of the Lease with one further option of five (5) years for an amount of $120.00 per square metre per annum; and a signed Heads of Agreement with a multinational company, to take a further 25% of the building for a term of seven (7) years from the commencement date of the Lease with one further option of three (3) years for an amount of $120.00 per square per annum. 6. At the time of commencing construction and [sic] the time of entering into the agreement for Lease and Heads of Agreement I had no knowledge of the proposed infrastructure charge in excess of $1,000,000.00. 7. I have no means at present of recouping the extra cost which was not contained in any feasibility that I undertook, as all of the advice given to me was that I was not liable for any such charge because the application for building approval had been lodged prior to the commencement of the priority infrastructure charge. -- 8 of 14 -- 9 8. Prior to receiving advice from counsel on 2 June 2008, I was at no time aware of my rights of appeal with regard to the Infrastructure Charges Notice." In his affidavit filed on 7 August 2008 he deposes: "9. At no time was I made aware by the private certifier, the Council or George Sarikas, that there were rights of appeal to the Court for infrastructure charges. Not until after the time for appeal had expired, was I informed by my legal advisers of the time limit for appealing against the Infrastructure Charges Notice. 10. Throughout most of April and May 2008 I was in Melbourne and Sydney involved in the business of Malmar Enterprises Pty Ltd which is a wholesaling company. My opportunity to seek advice earlier and more promptly was limited by the fact that I was in Sydney during this period whereas my usual place of residence is on the Gold Coast. However, had I been aware of the rights of appeal, I would have sought advice more promptly in order to exercise on behalf of the appellants, their rights to appeal the Infrastructure Charges Notice." By section 4.1.55 time can be extended if the Court is satisfied there are sufficient grounds for the extension. Relevant to the exercise of this discretion are whether there is an acceptable explanation for the delay, whether it is fair and equitable in the circumstances to extend time, whether other parties would suffer prejudice should time be extended, whether the applicant has, by non-curial means, made other parties aware that he/it contests the finality of the decision, any relevant public considerations, the merits of the substantive appeal and the extent of the delay. See -- 9 of 14 -- 10 Mitchell v. Brisbane City Council [2006] QPELR 798 at paragraphs [16]-[23] where relevant authorities are collated. In Marcelawn Pty Ltd v. Townsville City Council [1998] QPELR 35 at 39, I said: "I agree that satisfactory explanation should be proffered, that relevant facts should be covered, that satisfactory reasons should be forthcoming, and that an extension of time should not be granted lightly or by guess work." I am unable to agree with the respondent's solicitor, Mr Loos, that it is a pre-condition to the exercise of the discretion that an acceptable or satisfactory explanation for the delay be shown. No such requirement is expressed in section 4.1.55 and none should be implied. One of the matters to consider, along with others, is any explanation for the delay and if there is one whether it is acceptable or satisfactory. As to the merits of the appeal these can only be assessed "in a fairly rough and ready way" having regard to the limited materials and argument on an application such as the present, see Jackamarra v. Krakouer [1998] 195 CLR 516 at 521-522 and 540- 541. The absence of any notice or advice in the Infrastructure Charge Notice about appeal rights and time limits (see section 5.1.8(1) Integrated Planning Act) adds a factor to those decisions involving out of time appeals from decision notices, see section 3.5.15(2)(m) Integrated Planning Act. In his written submissions, Mr Cronin, counsel for the applicants, said: -- 10 of 14 -- 11 "10. The applicants, as a result of their building approval, commenced construction of the $11,700,000.00 warehouse which has been partly pre- leased. Mr Turner says that he had no knowledge of the charge at the time of his feasibility nor, presumably at the time he fixed the rent with his tenants. He therefore has a real interest in disputing the Infrastructure Charge. 11. In terms of the factors to be considered in favour of the exercise of discretion the applicants submit: (a) the failure to appeal has been explained, particularly by the facts that: (i) the Notice of Charge does not contain any information giving advice as to the rights of appeal; (ii) the applicants immediately upon receipt of the charge had the certifier write to the Council, then engaged a consultant and then when that was not getting anywhere, engaged solicitors who engaged counsel. The applicants were active in seeking to exercise their rights. (b) There is no prejudice to any person, including the Council, as this is recovery of a charge and affects no other person. The Council will always be entitled to recover whatever charges are lawfully due to it; (c) The applicants commenced construction of the building at a cost of more than $11.7 million on or about 18 April 2008 prior to the charge. They entered into negotiations with their tenants prior to that date. They are obviously financially embarrassed by having to find $1 million when that was not part of any feasibility, and about which they had no knowledge until receipt of the charge; (d) There are no public interest considerations which prevent the extension of time; -- 11 of 14 -- 12 (e) In terms of the merits of the application, the letter tendered to the Court from the appellants' [sic] solicitors to the Council solicitors, sets out the basis on which the charge is contested. They are largely legal grounds in an area that has not been judicially explored and at the very least, they indicate errors of calculation on the part of the Council The Infrastructure Charges Notice itself seems to have been served more than 3 months after the receipt of the development approval dated 8 January 2008 for building work. That fact alone may make the Notice void or unenforceable. 12. The amendment to section 4.1.36(4) of the Integrated Planning Act which came into force on 18 July 2008 opens up the issue of whether any reasonable Council would have imposed that charge. The Applicants' contention is that they are entitled to take advantage of the amendment to the Act and they fit squarely within section 4.1.36(4) in its current form." These are, I consider, legitimate and relevant considerations. The failure to seek legal advice before 27 May 2008 notwithstanding the size and nature of the proposed commercial development can, I consider, be explained by the steps taken by the applicant on April 24 and 28 and May 8, the failure of Mr Sarikas to provide his report within time and the absence from the Gold Coast of Mr Turner during most of April and May 2008 when he was in Melbourne and Sydney on business. The applicants also have in my view a sufficiently arguable case, for present purposes, as to the validity of the Infrastructure Charge Notice and the alleged errors in calculating the charges which are said to be "in the region of $200,000." The building application was lodged on 22 December 2006 and the Priority Infrastructure -- 12 of 14 -- 13 Plan (establishing the infrastructure charges regime on the Gold Coast) came into effect on 8 January 2007. Also, following the amendment to section 4.1.36(4) Integrated Planning Act which came into force on 18 July 2008 the applicants may be able to argue, as well, that no reasonable council would have imposed the charge. Mr Cronin also submitted that the level of experience and knowledge about relevant issues, charges and processes of those in the building industry, at the time, would have been fairly limited but there is no evidence of this and I am not able therefore to take this matter into account. Further, at no time (except perhaps between 27 May and 3 June) has the respondent been in any doubt about the fact that the applicants were challenging the charge. The respondent does not point to any prejudice should the application succeed beyond that associated with the mere fact of an extension of time but that is something which is inherent in any successful application to extend time. In all the circumstances I think the applicants have satisfactorily explained the delay; the respondent would not suffer prejudice should time be extended; the applicants have by correspondence, before the expiration of time, disputed the charge; no public considerations militate against extending time, in fact they may support curial consideration of the respondent's Priority Infrastructure Plan; the proposed appeal is not without merit; the delay has not been great - 6 business days only - and generally it would, in my view, be fair and equitable to extend time. -- 13 of 14 -- 14 For these reasons the application will be granted and the time for filing the notice of appeal will be extended until 3 June 2008. As to costs, I have re-considered what I said in King v. Charters Towers City Council [2004] QPELR 47 at 53-54 in the light of subsequent decisions and, upon reflection, I think that section 4.1.23(2)(e) is limited to procedural requirements such as those contained in the Planning and Environment Court Rules and orders and directions of the Court and does not include legislative procedural requirements or limitations such as the time in which particular acts should be done. For these reasons I make no order as to the costs of the application. ----- -- 14 of 14 --