Bradshaw v Beaudesert Shire Council & Anor [2006] QPEC 71 (2006) QPELR 775

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bradshaw v Beaudesert Shire Council & Anor [2006] QPEC 071 PARTIES: CHRISTINE LOUISE BRADSHAW Appellant v BEAUDESERT SHIRE COUNCIL Respondent and GARY E BAHR Co-Respondent FILE NO/S: Appeal No BD1329/06 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 21 July 2006 DELIVERED AT: Brisbane HEARING DATE: 12 July 2006 JUDGE: Rackemann DCJ ORDER: CATCHWORDS: COUNSEL: Mr Cochrane, of counsel, for the appellant Mr Andreatidis, of counsel, for the respondent Mr Hughes SC for the co-respondent SOLICITORS: Quinn & Scattini for the appellant Corrs Chamber Westgarth for the respondent Connor O’Meara for the co-respondent -- 1 of 9 -- 2 [1] The co-respondent, Mr Bahr, who was the successful applicant for a development approval from the respondent, seeks an order that this submitter appeal be struck out. The appellant seeks orders extending the time for filing and giving notice of the appeal, together with leave to amend the Notice of Appeal to correct the heading, so as to include the co-respondent. [2] The principal submitters were sent a copy of the Decision Notice, together with extracts from the IPA dealing with their appeal rights, under cover of a letter from the council dated 29 March 2006. That letter concluded with the statement:- “Should you wish to discuss this matter further, please contact Ms Helena Brown, Planning Officer, Planning and Development.” [3] The appellant, as a submitter, was required to start an appeal within 20 business days after the Decision Notice was given to her1 . The notice is taken to have been given on the day it would have been received in the ordinary course of the post, unless the contrary is proved 2 . The appellant has no clear recollection of the date the notice was received, but says it was 31 March 2006 or possibly later3 . Adopting 31 March 2006 as the date notice was given, or should be taken to have been given, would mean that the last day for starting an appeal was Thursday, 4 May 2006. The appellant, at the time, assumed the last day to be 3 May 2006, and the argument proceeded on that basis. The outcome of the application does not depend upon whether the last day was the 3 rd or the 4th of May. The Notice of Appeal was filed on 5 May 2006, being a day or two late. The extension sought for the institution of the appeal is relatively brief. 1 See s 4.1.28(4) 2 Section 39A of the Acts Interpretation Act 3 Affidavit of Bradshaw par 10 -- 2 of 9 -- 3 [4] Pursuant to s 4.1.43, Mr Bahr, as the applicant for development approval, is a co-respondent to the appeal and entitled to be heard as a party. The Notice of Appeal however, did not name any co-respondent. That ought to be corrected if the appellant is otherwise granted the extensions she seeks. [5] Pursuant to s 4.1.41, written notice of the appeal was required to be given, within two business days after the appeal was started, to the respondent, co-respondent, the Chief Executive and any referral agency. The Notice of Appeal, in this case, was served on the respondent on 8 May 2006, but notice of the appeal was not then given to others, including the co-respondent. The requested extension of time for giving notice of the appeal is more substantial than for the institution of the appeal. [6] The court has power, pursuant to s 4.1.55, to allow a longer time for the appellant to commence and give notice of the appeal, if it is satisfied that there are sufficient grounds for the extension. In deciding whether to grant an extension the court has regard to all matters which are relevant to the request. The fate of the co- respondent’s strike-out application depends, in this case, upon whether the court is prepared to grant extensions to the appellant. [7] A relevant consideration in relation to the request for extensions is whether there has been an adequate explanation for delay. In this case, the appellant explains initial delay, within the time for instituting an appeal, by reference to a delay in meeting a Council officer and thereafter in identifying a firm of solicitors to engage. She explains subsequent delay by reference to her reliance on those solicitors. [8] Upon reading the decision notice, the appellant decided that she wished to meet with someone from the Council to seek “some clarification” before she sought legal -- 3 of 9 -- 4 assistance4 . It has already been noted that the notice from the respondent to the appellant invited her to contact a Council planning officer if she wished to discuss the matter further. The appellant contacted the nominated officer who, in turn, arranged for a meeting between the appellant and Ms Angus on Thursday, 13 April 2006. At that meeting, Ms Angus advised the appellant that she should retain a good lawyer if she wished to take the matter further. [9] Thereafter, the appellant made enquiries in an endeavour to find a suitable law firm which purported to be able to assist her with the matter.5 Ultimately she arranged a conference with a solicitor from a local firm on 26 April 2006. At that time she was acting on the assumption that the appeal had to be started by 3 May 2006 and gave instructions to the solicitors to institute an appeal within time. The solicitor, whom she saw on 26 April 2006, was about to be married but said the matter would be passed to the principal of the firm6 . [10] The appellant did not leave the matter there. She was concerned, at least initially, to get some confirmation that the appeal had been instituted within time. She rang her then solicitors, on 3 occasions, shortly after the appeal period had expired, but received no return call and thereafter desisted. At that time she did not wish to pester the solicitors7 . She was consoled that the matter was in the hands of the principal of the firm8 and she had been told, in the conference on 26 April 2006, that she may not hear anything for some time after the appeal was instituted9 . [11] At some point the solicitors for the co-respondent became aware of the appeal and wrote to the appellant’s then solicitors on 29 May 2006, taking issue with the 4 T16 5 T17 6 T10 7 T11 -- 4 of 9 -- 5 appellant’s failure to commence or serve the appeal within time. This prompted the appellant’s then solicitors to contact their client on Friday, 2 June 2006. The appellant attended a meeting at their offices later the same day. On 6 June 2006, the appellant instructed her then solicitors to transfer the file to her current solicitors. The co-respondent’s strike out application was filed on 16 June 2006. [12] I do not think it unreasonable, in the circumstances, for the appellant to have made arrangements to speak to the Council’s planning officer before appointing solicitors to take the matter further. Senior counsel for the co-respondent was critical of the delay between the appellant’s meeting with the Council officer on 13 April 2006 and the meeting with her solicitors on 26 April 2006, but it must be remembered that the intervening period included both Easter and Anzac Day. There were only a limited number of working days in the intervening period for the appellant to make inquiries, identify a firm which she thought would be appropriate and arrange a meeting. Once she had seen solicitors, it was reasonable for her to assume that they would properly prepare the Notice of Appeal, naming the correct parties, and attend to both its timely filing and service. [13] An appellant will not always be able to obtain an extension simply on the basis of reliance upon the failings of his or her solicitor. In this case however, the appellant had instructed solicitors who purported to be able to deal with a matter of this nature and asked them to institute the appeal within the time allowed. There was no particular reason for the appellant to take further steps, between 26 April and 3 May, to ensure that the appeal was instituted within time. Thereafter, she attempted to make due inquiry of her then solicitors, but her calls were not returned. While, with the benefit of hindsight, she might have been more persistent in those attempts, 8 T11 -- 5 of 9 -- 6 it must be remembered that she had earlier been advised that she may well hear nothing for some period of time after the institution of the appeal. Even had she discovered that the appeal was instituted a day or two late, that would not necessarily have brought to her attention the failure by her then solicitors to name the appropriate parties or give proper notice of the appeal in accordance with the Act. When the co-respondent’s solicitors raised matters of non-compliance, the appellant acted relatively promptly in first attending on her then solicitors and then in asking her file to be transferred to another firm. [14] I accept that the appellant has given a satisfactory explanation for delay. [15] The respondent does not suggest it would be prejudiced if extensions were granted to the appellant. [16] It was pointed out, for the co-respondent, that the time for giving notice of the appeal, in accordance with s 4.1.41(2)(b), is only two business days after the appeal is started and that the time allowed is now shorter than it once was. The stipulation of such a short period is understandable. It is obviously important for the co- respondent, in particular, to know promptly whether the development approval is subject to an appeal, with the consequence of at least a delay (even if the appeal is ultimately unsuccessful) in the coming into force of the approval (s 3.5.19). It is however, not possible to say for how long the co-respondent, in this case, was ignorant of the appeal, by reason of the failure of the appellant’s solicitors to give notice. He otherwise became aware of it by 29 May 2006, when his solicitors wrote to the then solicitors for the appellant. The co-respondent did not however, file material to establish when he first came to know of the appeal, nor to establish that 9 T10, 34 -- 6 of 9 -- 7 he acted to his detriment while in ignorance of the appeal or would otherwise suffer specific prejudice, beyond that referred to below, if the extensions were allowed10 . [17] As senior counsel for the co-respondent pointed out, his client has already been put to some expense in the proceedings and has been delayed somewhat in progressing the appeal to an expeditious hearing and determination and will, if extensions are granted to the appellant, have to respond to the appeal. It would not appear however, that the appellant’s delay has prejudiced the co-respondent in discharging its onus in the conduct of its case on the merits, if the appeal were to proceed. [18] If extensions were not granted, the subject appeal would be struck out and the appellant would lose her opportunity to have the merits of the co-respondent’s application examined by the court. It was not suggested that there was any related objector appeal, by which the matter would come before the court. [19] The appellant was not only an adverse submitter, but is the owner of land adjoining the subject site. She has an understandable interest in the development application and genuine concerns about it. Those concerns are briefly expressed in the Notice of Appeal (which was drawn by her then solicitors and not seen by the appellant) as relating to inconsistency between the development and “appropriate environmental actions” and adverse effect on neighbourhood amenity and the character of the local area. Her concerns are more fully expressed in her submission to the Council. [20] It was submitted, on behalf of the co-respondent, that the appeal has no serious prospects of success in any event. Reliance was placed on an affidavit by Mr Van Der Linde, a town planner who was once employed by the respondent but is now employed by a company engaged by the co-respondent. 10 Compare Kangaroo Point Resident’s Association v BCC & Anor [2006] QPEC 11 -- 7 of 9 -- 8 [21] The approval is for a development permit for reconfiguration of a lot (1 into 2) and a preliminary approval for a material change of use to override the Transitional Planning Scheme so that the land may be used for light industrial purposes, subject to code assessment, notwithstanding its current Rural Residential A zoning. [22] The subject land is not only in the Rural Residential A zone under the Transitional Planning Scheme, but is also designated “Rural” under the Strategic Plan. [23] Mr Van Der Linde did not say that the matter was unarguable. In forming his view that approval of the application, subject to conditions, “appears to be reasonable having regard to all of the circumstances” and that he did not consider the appellant’s concerns to justify refusal of the application, Mr Van Der Linde referred, amongst other things, to industrial designations which apply to the site under an existing Development Control Plan and also under the draft new planning scheme. He also referred to the Council’s assessment of the application and to conditions of approval designed to minimise amenity impact. While I do not necessarily dismiss Mr Van Der Linde’s opinions, the court is not currently in a position to conclude that the appeal is devoid of prospects of success. [24] The re-hearing of a development application, de novo, on appeal in this court is unlike an ordinary civil action in which a court is called upon to determine whether the elements of a cause of action have been established, so as to entitle a party to relief or whether a defence has been made out. The exercise of this court’s jurisdiction commonly involves matters of assessment and a balancing of considerations, in the context of the relevant planning strategies, in deciding whether or not to exercise a discretion in favour of granting approval. For this reason it will often be difficult for this court to assess prospects of success at an interlocutory stage. -- 8 of 9 -- 9 [25] The concerns raised by the appellant in response to a development application which seeks, in part, to override the current Transitional Planning Scheme, do not appear to be, in all respects, irrelevant and I would not be prepared to conclude, at this stage, that the appeal was necessarily doomed to failure or lacks any serious prospects of success. [26] Attention was drawn to a file note, made by the appellant’s previous solicitor, of a conference on 2 June 2006. That note recorded, amongst other things: “Client wants to pursue matter even though prospects of success are minimal as industrial estate on Bahr’s land + case law unsupp of appeals in such matters as found in case law.” [27] The truth of the contents of the file note were not proved by evidence from the appellant’s former solicitor. In that regard, the co-respondent pointed to the appellant’s refusal to waive legal professional privilege. It might be that any such privilege was, in the circumstances, lost by reason of an imputed waiver11 , but that was not pursued. In any event, the appellant conceded, in her oral evidence, that her previous solicitors said her prospects were minimal. She was however, unpersuaded by the reasoning and unimpressed by varying percentage assessments given in the course of the conference12 . I am not prepared to conclude that the appeal is frivolous or vexatious or is sought to be pursued belligerently, regardless of merit. [28] I am satisfied that it would be fair and equitable, in the circumstances, to extend time. [29] In all the circumstances I am satisfied that there are sufficient grounds for the extension sought and I am, on balance, prepared to exercise my discretion in favour of granting them. I will hear from the parties in relation to appropriate orders. 11 See Goldberg v NG (1995) 185 CLR 83 at 95-96 12 T21 -- 9 of 9 --