Edgarange Pty Ltd v Redland Shire Council [1994] QPEC 67

. /A-;;i,3,?:,;,_o ?iE 'l+/ o 6 7 '_!NG State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT SENIOR JUDGE SKOIEN p & E Appeal No 252 of 1994 P & E Appeal No 257 of 1994 EDGARANGE PTY LTD and REDLAND SHIRE COUNCIL BRISBANE .. DATE 02/09/94 JUDGMENT j REVISED COPIES iSSUED l State Reporting Bureau IDate } L I CJ I C', I.../ Appellant Respondent -Ith floor, The L:iw Courts, George Stret•t, Brisbane, Q. 400(} Telephone: (07) 227 -IJ60. F:lc:simile: (07) 227 5532 -- 1 of 4 -- 020994 kak (Skoien SJDC) HIS HONOUR: These are applications for declarations that a purported extension by the Council of the period in which the Council was required to determine the applications, the subject of these two appeals, is invalid: (a) Because of the Council's failure to comply with the provisions of section 4. 4 ( 4C) of the Local Government (Planning and Environment) Act 1990, or alternatively; (b) Because of the length of time of the purported extension. Each of these appeals related to an alleged deemed refusal of the respondent Council to determine a combined application for rezoning and subdivision. Under section 4.4(4) the Council is required to make its decision within 40 days of the receipt of a statutory declaration as to public notice. Section 4.4(10) and section 7.1 (2) (b) give the appellant the right to appeal when the Council has failed to decide within that period. Section 4.4(4A) permits the Council to resolve to extend its time for consideration, but under section 4.4(4C): "If the local authority extends or further extends the period mentioned in subsection (4) it must notify the applicant of the extension before the extension starts." The question is whether the timeframe laid down by these sections is mandatory or merely directory. The principles are set out in Maxwell on Interpretation of Statutes, 12th Edition, pages 314 et seq. To summarise them, it is not the literal word_ing which is decisive, but such things as the subject matter, the importance of the provision which has been disregarded, and the general objects intended to be secured by the Act. 2 JUDGMENT ' 10 20 30 40 50 60 -- 2 of 4 -- 020994 kak (Skoien SJDC) Mr Hughes, for the appellant, has submitted that at the expiration of the 40 days the appellant had a crystallised right to appeal and the Council's purported extension destroyed that right. I accept that at that time the appellant did have a right to appeal, but the real question is whether the loss of that right, by permitting the Council to extend when out of time, is so important as to strike down the objects of the legislation. The objects which are set out in section 1. 3 certainly include the right of the appellant to appeal, but more generally, and perhaps more importantly, they set out a framework encompassing not just the right of appeal, but the orderly planning of the entire area concerned. The respondent Council is of course the body primarily charged with that orderly planning for this shire. There must be occasions on which a Council cannot do its duty within the 40 days referred to in section 4. 4 ( 4) . Serious lengthy study may be called for. The material suggests that to be the case here. The importance of preserving the Council's right to carry out such studies is reflected in section 4.4(4A). That seems to me to be a matter of extreme public importance. I do not consider that the appellant has lost any right. Indeed, if the Council should decide in the appellant's favour, it would never need to exercise a right to appeal. At worst, it has had its right deferrBd. I do not see, looking at the provision as a whole, that deferral to be critical. Such a deferral would be the result had the Council, within time, extended the period of its consideration for, say, 40 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 4 -- 020994 kak (Skoien SJDC) days. I note that in Scurr v. The Brisbane City Council (No 5), 28 LGRA 50 at 60, after having referred to provisions held by the High Court to be mandatory, the Court said: "The situation is quite different from that encountered when some formality of time or procedure has been neglected." So it seems to me that the wording in section 4. 4 ( 4A) and section 4.4(4C) is directory only. The second limb is that the Council cannot extend for the length of time it has purported to do here, which is well over 40 days. The Act does not lay down any restriction on the period for which the Council may extend. Presumably the Legislature preferred to leave it flexible in view of the fact that some inquiries might call for brief delay only while others might require quite long delay. Further, it seems to me that if the Council has the general power to extend and to re-extend under section 4.4(4A), it is difficult to see why it cannot initially extend for more than 40 days. It is simply left open. I assume that the Legislature considered that any wilful or negligent flouting by a Council of an applicant's right to a determination by an extension which is considered to be too long could be the subject of judicial review by the Supreme Court. I therefore dismiss the application. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 4 --