Butler v Kingaroy Shire Council [2005] QPEC 49

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Butler v Kingaroy Shire Council [2005] QPEC 049 PARTIES: FREDERICK DAVID BUTLER Appellant v KINGAROY SHIRE COUNCIL Respondent FILE NO/S: DB1482/05 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 16 June 2005 DELIVERED AT: Brisbane HEARING DATE: 7 June 2005 JUDGE: Rackemann DCJ ORDER: Paragraph (b) of the application granted CATCHWORDS: LOCAL GOVERNMENT – application for extension of time to serve notice of appeal – s 4.1.55 Integrated Planning Act 1997 – whether sufficient grounds for extension Integrated Planning Act 1997 Cases cited: Carter v Redland Shire Council & Anor [1999] QPELR 88 Jess v Scott & Ors (1986) 70 ALR 185 Robertson & Anor v Brisbane City Council [2003] QPEC 77 Soyka v Hervey Bay City Council Unreported Quirk DCJ 30 October 2002 COUNSEL: MD Hinson SC and B Job for the applicant R Livingstone-Ward for the respondent SOLICITORS: Irish Bentley for the applicant King & Company for the respondent -- 1 of 7 -- 2 [1] By an application in pending proceeding filed 28 April 2005 the applicant/appellant sought a declaration that his notice of appeal was filed within time or, in the alternative, an order pursuant to s 4.1.55 extending the appeal period up to and including 27 April 2005, being the day upon which the notice of appeal was filed. Argument on the hearing of the application was confined to whether an extension of time ought be granted, the appellant having abandoned the application for declaratory relief. [2] The appeal is against the decision of the respondent made on 26 August 2004 to approve in part, rather than in its entirety, a development application for a development permit for material change of use. The decision notice, dated 2 September 2004, was received by the applicant on 8 September 2004. Pursuant to s4.1.27, the appeal period would ordinarily have expired on 6 October 2004. In this case it is common ground that the appeal period was suspended, for a time, pursuant to s 3.5.18, such that the appeal period expired on 28 October 2004. The notice of appeal was filed some six months later. The consequence is that the period for which an extension is sought is substantial. That is a relevant matter but is not necessarily determinative. [3] The applicant’s failure to institute an appeal within the appeal period is explained by his reliance on a planning consultant, who instead sought to make recommendations to the assessment manager, pursuant to s 3.5.17, with a view to obtaining a negotiated decision notice. It was common ground on the hearing of this application that such process was not available in the circumstances. [4] Section 3.5.17 permits an applicant to make representations “about a matter stated in the decision notice, other than a refusal ....”. The council’s approval stated that “only part of the area proposed to be rezoned to residential B has been approved” -- 2 of 7 -- 3 and that “council has not approved the proposed rezoning to light industry”1 . The representations by the applicant’s consultant were directed at seeking the approval of the proposal in its entirety. The applicant now concedes that such representations were in respect of parts of the application which had been refused, that s 3.5.17(1) was not available in the circumstances and that, for the purposes of s 3.5.18(3), “written representations” were not made, with the result of the balance of the applicant’s appeal period restarted following its initial suspension. [5] While conceding that the representations did not fall within s 3.5.17(1), senior counsel for the applicant/appellant submitted that one might easily be forgiven for having thought that the council’s decision notice did not constitute a refusal. In that regard, he pointed to s 3.5.11(1) of the Act which contemplates a decision to “approve all or part of the application”2 or to “refuse the application”3 . He also pointed to parts of the respondent’s decision notice, particularly: (1) the statement, in the opening paragraph, that the application “was assessed and approved in part subject to conditions”; (2) the insertion of ‘N/A’ under the heading “Reasons for Refusal”; (3) the statement in the first paragraph to attachment A that “as the assessment manager, Kingaroy Shire Council has approved the application subject to the following conditions …”; (4) that the word “refusal” was not used in the council’s decision on the proposed “Residential B” and proposed “light industry” areas; and (5) that the plan attached to the decision notice bore an “approved” stamp. [6] While it was accepted that the representations made under cover of letter dated 24 September 2004, together with the additional information forward under cover of 1 Reference to rezoning is misplaced in the context of the IPA, but nothing turns on that. 2 See s 3.5.11(1)(a)(b) -- 3 of 7 -- 4 letter dated 29 November 2004, were not representations for the purposes of s3.5.17, they did put the council on notice that the applicant had not accepted the council’s refusal, in part, of the application and also gave notice of the nature of the applicant’s submissions as to why those components ought be approved. [7] That such representations might not be able to be made pursuant to s 3.5.17 was not something which the respondent raised at the time of their receipt. In a letter dated 20 December 2004, the chief executive officer wrote to the applicant’s consultant referring to the representation and further information and advising that, while council had yet to consider the matter, it was expected to do so in its meeting on 27 January 2005. It was not until a letter dated 27 January 2005, the exhibited copy of which also bears a date stamp of 31 January 2005, that it was first asserted that council was unable to issue a negotiated decision notice. In the same letter, the council went on to address the substance of the representations on the basis of providing “without prejudice advice”. [8] The applicant deposed that, upon being informed of the council’s correspondence, he instructed his planning consultant to refer the matter to his solicitors. The material does not establish the date upon which the council’s letter was received, the date on which its contents were brought to the attention of the applicant or the date upon which instructions were given to the applicant’s consultant to refer the matter to the solicitors. A letter from the applicant’s solicitors indicates that they were instructed on 2 March 20054 . [9] The council’s letter of 27 January was responded to by the applicant’s solicitor, Mr Bentley, by letter dated 2 March 2005. That letter advised that the applicant was 3 See s 3.5.11(1)(c) 4 See exhibit ZDB1-8 to the affidavit of Zeke David Bentley -- 4 of 7 -- 5 still awaiting a negotiated decision notice pursuant to s 3.5.19 and went on to provide “feedback” on the council’s response to the substance of the representations. The letter noted that the “current focus” of the solicitors, who had only just been engaged, was to ensure that there was an open discussion of relevant considerations and a cooperative approach to the development. [10] The council responded by a letter dated 6 April 2005 which, amongst other things: confirmed its position that it was unable to issue a negotiated decision notice; drew specific attention to s 3.5.17(1); and asserted, for the first time, that the appeal period had expired on 28 October 2004. [11] Following receipt of that correspondence, the appeal was filed on 27 April 2005 and the subject application was filed the following day. [12] Section 4.1.55 of IPA permits the court to allow a longer time for the filing of the notice of appeal if the court is satisfied that there are sufficient grounds for the extension. The parties referred to Soyka v Hervey Bay City Council5 and Robertson & Anor v Brisbane City Council6. Those cases identify matters of relevance to establishing sufficient grounds. [13] In this case there are a number of factors which weigh in favour of the exercise of discretion, in particular: (a) the failure to file an appeal within time has been explained by the actions of the applicant’s consultant in seeking to invoke the s 3.5.17 process which, if effective, would have postponed the expiration of the appeal period in accordance with s 3.5.18(4); (b) at all material times the applicant relied upon his consultant town planner, and later his solicitor. Any errors on their part should not necessarily be visited upon the applicant.7 The applicant himself took steps to obtain legal 5 Unreported Quirk DCJ 30 October 2002 6 [2003] QPEC 77 7 Jess v Scott & Ors (1986) 70 ALR 185, Carter v Redland Shire Council & Anor [1999] QPELR 88 -- 5 of 7 -- 6 advice upon being informed of the letter whereby council first asserted that it could not issue a negotiated decision notice; (c) the respondent did not take issue with the course adopted by the applicant/appellant until well after the expiration of the appeal period; (d) the representations put the respondent on notice, at an early time, that the applicant did not accept the partial refusal of the application and held a continuing interest in pursuing the proposed development; (e) no specific prejudice would arise to the respondent or any third party from permitting the extension; (f) although it is not possible to assess the merits of the appeal in the context of hearing the subject application to extend time, the correspondence suggests that there is a genuine controversy between the parties; and (g) delay and expense would be occasioned were the appellant required to ‘start again’ by the lodgement of a fresh application rather than obtain an extension of time for instituting the subject appeal. [14] The solicitors for the respondent conceded, in the course of submissions, that an extension of time may well have been justified had the applicant taken steps to file a notice of appeal promptly upon receipt of the council’s letter of 27 January, but that the delay from that point had not been sufficiently explained. [15] As senior counsel for the applicant pointed out, the council’s assertion that it could not issue a negotiated decision notice was not one which was immediately accepted by the solicitor for the applicant8 and the delay, of about a month, in responding to the council’s letter is not extraordinary when set in the context of the passage of correspondence between the parties. In that regard, it may be noted that the respondent’s subsequent reply, in which it maintained its position and drew specific attention to s 3.5.17(1) and to the consequences in terms of the expiration of the appeal period, was not sent until a little more than a month later. It was that letter which apparently provoked the filing of the notice of appeal that same month. 8 Indeed the prayer for declaratory relief in the application in pending proceeding suggests that it was still not accepted at the time the application was filed. -- 6 of 7 -- 7 [16] The solicitor for the respondent submitted that the applicant’s position should have been appreciated immediately upon receipt of the council’s letter dated 27 January 2005. It appears however, that the applicant acted not unreasonably in instructing his planning consultant to refer the matter to his solicitors and then subsequently relying upon his solicitors. It is also noted that it was not until the council’s subsequent letter of 6 April 2005 that the expiration of the appeal period was first raised. The delay in this period is relevant, but not determinative in the circumstances. [17] The solicitor for the respondent also submitted that the local authority and members of the public are entitled to a degree of certainty. That degree of certainty however, must also acknowledge the statutory power, pursuant to s 4.1.55, for the court to allow a longer period for the institution of the appeal. The fact that the notice of appeal was filed about six months out of time must be seen in the context of the circumstances, including the correspondence which was passing between the parties, which did not conclude, with respect to the negotiated decision notice issue, until council’s letter of 6 April 2005. Further, as to interested parties other than the council, there were no submitters in respect of the development application and the concurrence agency did not become a party to the appeal. [18] Having regard to the whole of the circumstances, I am prepared to exercise my discretion to grant the extension requested. -- 7 of 7 --