Downes & Anor v Whitsunday Shire Council & Anor [2002] QPEC 31

/- t &tXAv E*al oee c b3l State Reporting Bureau Queensland Government Department of ,ustlce and Attomey-General Transcri pt of Proceedi ngs Copyright in this transcript is vested in the Crown. Gopies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. { .. PLANNING AND ENVIRONMENT COURT JUDGE PACK No D44 of 2002 ,JOHN DOWNES and WENDY DOWNES and WHITSUNDAY SHIRE COUNCIL and SHARPE DEVELOPMENT GROUP PTY LTD ACN 082 851 658 TOWNSV]LLE ..DATE oe/oz/zooz .JUDGMENT Applicants First Respondent Second Respondent 1 REVISED COPIES ISSUED State Reporting Bureau Dale:. 18 I 2l O2 4Th Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (O7) 3247 4360. Facsimile: (07) 3247 5532 -- 1 of 6 -- o () 08022002 rr-2/DD M/T TSVPEI-/2002 (pack DC,J) HIS HONOUR: On the 9th of May 2001-, the co-respondent lodged an application to develop a 30-unit multiple dwelling at I-,ot 59 on SPL12860 Golden Orchid Drive, Airlie Beach. On the 2Lst of August 2001, the respondent issued a decision notice approving an application for q material change of use. On the 22nd of August 2001-, the respondent advised the applicant/appellant of the decision and that they would be given advice as to when the appeal period would begin. On the 1-5th of October 2001-, the co-respondent filed an appeal and a notice of appeal was sent to each principal submitter, which included the applicant/appellants in this matter. On the 1-8th of December 2001, the respondent sent a letter advising the applicants the appeal period had begun and that letter al-so advising of the decision notice approval being received by the applicant/appellants on the l-9th of December. On the l-7th of ,January 2002, a notice of appeal was sent by overnight courier to the Bowen registry of the Court. On the following day, it was mistakenly delivered to the Bowen Tourist and Regional Development Bureau. The appeal period, it is submitted, expired on the 22nd of ,fanuary 2002, and on the 25th of January, the appellant/applicants became aware that the notice of appeal was not filed until the 25th of ,Tanuary. Relatively soon afterward, the application to extend time to appeal was filed on the 4th of February of this year. l0 20 0 {\V 2 JUDGMENT 30 -- 2 of 6 -- () 08022002 rL-2/DD M/T TSVPEI,/2002 (pack DC,J) The applicant/appellant seeks an extension of time under section 4.1-.55 of the Integrated Planning Act. The section gives a wide discreLion to extend time if the Court is satisfied there are sufficient grounds for an extension of time. Section 4.1.28 of the Act allows a submitter 20 business days after a decision notice is given to institute an appeal. It can be argued persuasively that this notice was given on the 21-st of August 2001, but as noted, the letter al-so incl-uded the statement thaL the respondent would notify the applicant/appellant when the appeal period commenced - and I return in this context to the wide discretion that I have already mentioned within section 4.1.55. I have been referred to Sophron v The Nominal Defendant, L957 96 CLR 459 at 475 to Andronicus v Brisbane City Council, 1995 QPLR at 1l-9 and Conroy v Brisbane City Council , L995 QPL,R 382. Those cases have a consistency with one another and indicate that sufficient cause would be shown where a satisfactory explanation is given of the failure to act within time and the applicant has acted with due dilig'ence to protect their position. The appellants have, in my view, provided a satisfactory explanation for the failure to file the notice of appeal within the appeal period and acted promptly thereafter. 10 20 (i (J 3 .JUDGMENT 30 -- 3 of 6 -- ( r lJ r[) ) ( 08022002 rt-z/on u/r rsvpnt/zooz (pack oc,:) The co-respondent, in objecting to the application, refers to the fact that as a consequence of the late involvement of the applicant/appeIIants, there have been, in the absence of that party, legal expenses incurred in Cairns where a negotiated settLement of the differences between the respondent and the co-respondent was undertaken successfully. There is concern that any such costs might well be thrown away as a consequence of any extension of time to aIl-ow the applicant/appellants' appeal to proceed. Reference is made to the fact that work had already commenced to some extent on the subject site, and there is the potent,ial for environmental degradation through soil erosion. That work has ceased. Reference is further made to a marketing campaign with respect to contracts for sale of units. Some such contracts have been signed and they include reference to requirements that t.he construct,ion be completed by particular dates. And the point is also made that fj-nance approval and construction was estimated to take an 11-month period, leading to financial impacts for the co-respondent which are understood. The co-respondent also points to the capacity that the applicant/appellants had to join in the appeal process at a much earlier date and suggest that an explanation that has been advanced, that is, thaL the applicant/appellants did not do so because they had a discrete issue which was not generally within the grounds of appeal that had been lodged by l0 20 4 'JITDGMENT 30 -- 4 of 6 -- 08022002 Tt-2/no tq/t rsvpnr/zooz (pack Dc,J) the co-respondent is not one which the Court should find palatable. Based on the discretion to extend time, particularly in the circumstances of the notice having been given by the council that there would be time available from the l-9th of December 2001-, I propose to al1ow the application. It is unfortunate that the applicant did not join in this appeal at an earlier date, and the fact that there is some prejudice to the co- respondent by reference to delay, is understood. It is also understood that the delay would have given the co-respondent and respondent a reasonable anticipation that all matters in j-ssue had been resolved bet,ween parties who was interested. NoneLheless, as I have said, I am prepared to find that there has been sufficient cause shown to grant the application. f turn now to the question of costs. The applicant submits that there should be no order. In that context, I am referred to section 4.1,.23(2) of the Act. It is clear that it cannot be suggesLed that the application has been necessary arising from the fault of any party or prospective party to the appeal. The necessity for the application might in part be thought to involve the fact that the appellant did not join into Lhe appeal at an earl-ier date, and on t.he material did not seek lega1 advice until- early in ,fanuary of this year. The predominant cause of the necessity for the application however, has been the fact that a courier did not deliver the notj-ce of appeal for filing to the Bowen Court as a result of 1 (, () a) 10 20 ( (.-i 5 'JUDGMENT 30 -- 5 of 6 -- Y (.',, ) 09022002 tt-z/oo tullt rsvpn:-/zooz (pack oc,:) a mistake that was made by that courier. That, of course, is not a fault of the applicant/appellant. By reference to subsection (e), the conclusion I reach is that the co- respondent and the respondent have incurred costs because another party has defaulted in the Courtrs proceduraL requirements. That default arose through an agent, a breach of a contractual arrangement perhaps bet,ween the applicant/appellants and the courier company, but. to the extent that there has been an increase in expense incurred as a consequence of this application, I think it is appropriate that the respondent and co-respondent have their costs of this application and I order accordingly. I make an order in terms of paragraphs 1- and 4 of the application. (_) fr 10 20 r, fr ) 6 JUDGMENT -- 6 of 6 --