Feros Town Planning Consultants v Brisbane City Council [1994] QPEC 77

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P&E Appeal No. 207 of 1994 BETWEEN: KATY ANDRONICUS AND VICTOR G. FEROS TOWN PLANNING CONSULTANTS Appellants BRISBANE CITY COUNCIL Respondent REASONS FOR JUDGMENT - QUIRK D.C.J . . Delivered the /Cnli day of October 1994 John and Catherine Dalton (the applicants) are the registered proprietors of land in Brunswick street, New Farm where they operate a child care centre and have done so since April of 1992. In June of 1992 there came into effect legislation (the Child Care Act 1991) which regulates the provision of child care services and is administered by the Department of Family Services. The Act prescribed minimum standards for child care centres and existing centres are required to upgrade to those standards although certain "moratorium periods" are given for the completion of necessary works. on the 8th June 1993 the Department wrote to the applicants identifying works that were required in respect of this child care centre and specifying the time within which these works should be completed. In late 1993 the applicants engaged the services of a consultant engineer to plan those works and make -- 1 of 7 -- the necessary Town Planning Consent Application. This application was made on the 13th December 1993. on the 17th June 1994 the respondent resolved to approve the application. Being advised of the decision, the appellants, who had objected to the application, appealed against the decision on the 25th July 1994. The consultant, who had made the application on behalf of the applicants, was duly notified of the appeal. In turn he made the applicants aware of it but, ill-advisedly believing that it was not necessary for them to become involved in it, he suggested that they "stay out of it and let the Council (the named Respondent) dea 1 with it 11 • On the 16th August 1994, the appeal was entered for hearing and an application for directions was filed by the appellants. When the matter came on for hearing on the 18th August, the only parties before the Court were the appellants and the respondent. It was submitted by the appellants that, as the applicants carried the onus of showing that the application should be allowed and the appeal dismissed (s. 7 .1A(2} (a)) and had not elected to be joined as respondents to the appeal, the appeal should be allowed. The respondent, through its legal representative, accepted that this was the case and did not oppose the order sought. After the applicant, though its solicitor had filed an affidavit setting out the history of the matter, the due service of the Notice of Appeal upon the applicants and the absence of any election, I accepted the appellants' submission and ordered that the appeal be allowed. The relevant order was taken out on the 23rd August 1994. -- 2 of 7 -- 3 The applicants learned of th1.' s when they contacted the respondent on the 14th September 1994. They had been advised and had believed that "it could be months" before the appeal was determined. They immediately contacted their solicitor and filed (on the 19th September 1994) an application seeking orders that the order allowing the appeal be set aside and that the time within which they might elect to become respondents to the appeal be extended. This unhappy state of affairs follows the rather enigmatic situation created by the Act in casting an onus of proof upon a party who has not invoked the jurisdiction of the court or sought from it any relief. The difficulties are not diminished by that party's not being a mandatory party but an elective party. The applicants seek to rely on R.22 of the Local Government Court Rules which provides: "In any case in which the Court has given or made a judgment, order, or decision in the absence of any party entitled to be heard, such party may apply to the Court to have such judgment, order or decision set aside, and the Court may set aside such judgment, order, or decision upon such terms as to costs or otherwise as the Court thinks fit." It was argued by the appellants that the Rule has no application to the present case as the applicants were not, at the time when the appeal was allowed, a "party entitled to be heard". It is not unfair to say that the manner in which the Act sets out to deal with the status and competency of parties to proceedings before the Court is somewhat less than meticulous. It could be pointed out that the right of an applicant (or an objector) to elect to become a respondent to an appeal is not -- 3 of 7 -- 4 given specifically. wording of s.7.1(4). It arises only by implication from the In relation to the question of who are "parties entitled to be heard" in important matters coming before the court pursuant to s.2.24 (declarations, restraining orders etc.). the Act is silent. To do what justice obviously demands, the court has had to resort to the power derived from R.39 which picks up o.3 of the Supreme Court Rules to see that parties who patently need to be heard in such matters are before it. It is true that s.7.1(4) (c) provides that: "A respondent to an appeal is entitled to be heard in the appeal as a party to the appeal". However, to read this rather self evident statement as dealing with the matter of status and competency exhaustively is, I fear, going too far. Again by implication, the right of a party (who has not elected within time) to seek an extension of time to become a respondent to an appeal necessarily arises out of s.7.(1) (4) (b). Although the applicants did not (understandably in the circumstances) have any notice of the hearing of the application for directions when the order allowing the appeal was made, had they appeared at that time seeking an extension of time within which to elect, no one would have denied their right to be heard there and then on that basis. The end result is that the applicants, who have gone to the trouble and expense of applying for and having had granted their application for town planning approval, have, as a result of an unfortunate misunderstanding of the Act's imposition of the onus -- 4 of 7 -- 5 of proof on an elective party, had , in their absence, that approval overturned. I say at once that there can be no suggestion of any criticism of the appellants and their solicitor who have acted at all times properly and within their rights. However, in all the circumstances, and with some reservations, I find that as the court would undoubtedly have heard the applicants (had they been present at the time the appeal was allowed} in regard to whether such an order should or should not or have been made, I have in this case a discretion to act as contemplated by R.22. There is another and perhaps more serious question raised regarding the Court's power to allow the appeal as it did. It is well settled that once proceedings before a Court are regularly concluded and an order disposing of those proceedings has been perfected by being drawn up as a record of the Court, that proceeding, apart from any specific and relevant statutory provision, is at an end in that Court and is in its substance beyond recall by that Court (Bailey v Marinoff (1971) 125 CLR 529 per Barwick c.J.at 530). However it is noted that the High Court was, in that case, examining the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court (per Menzies J.at 531). In this matter it is submitted that the Court lacked any power {on the 18th August 1994) to make an order allowing the appeal as it did. section 7.l(A} (1) provides that: 11 ••• the court is not to det 7rmine.an ~ppeal ~n respect of an application for which p_ublic !lot.ice is re~uired to be given by this Act unless it is satisf~ed b~ evidence or by affidavit that the applicant has complied with the relevant -- 5 of 7 -- 6 provisions of this Act in respect of the giving of public notice". At the time that the order was made I the only evidentiary material before the Court was an affidavit from the appellant's solicitor and although, quite properly, the solicitor put before the Court all the relevant facts which were, at the time, within the appellant's knowledge, these facts did not include any evidence that the applicant had complied with the relevant provisions of the Act in respect of the giving of public notice. As far as I can tell there is nothing further in the Act which could be said to have saved the situation. That it may be only the applicant who.can provide the evidence contemplated by the sub-section is obvious as it is that this might lead to a quite unsatisfactory situation (the applicant being in cases of this kind an elective party). The wording of the subsection is however clear enough and it is not for this Court to attempt to re-write it. In the absence of such evidence it must follow that the Court did not, at the relevant time, have the power to determine the appeal. The order allowing the appeal must accordingly be regarded as a nullity. The discretion to grant to Mr and Mrs Dalton an extension of time to elect to become a respondent to the appeal therefore remains alive. In the circumstances of this case I am satisfied that their failure to elect within time has been satisfactorily explained and that, having become aware of their predicament, they acted with due diligence to protect their position. The public interest requires, in my view, that decisions of a Local -- 6 of 7 -- 7 Authority (which one should assume are made after due consideration) be examined appropriately before being overturned. Accordingly I order; i. that the order made on the 18th August 1994 whereby the appeal was allowed be set aside and 2. that the time for the filing of a Notice of Election be extended in favour of the applicants to allow them forthwith to join as respondents to the appeal and 3. that the Applicants pay the Appellants' cost of and incidental to this application to be taxed in accordance with the relevant provisions of the act and 4. that the Applicants pay the Appellants' cost of and incidental to this application which are fixed by agreement at $1500.00. -- 7 of 7 --