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Supreme Renovators Pty Ltd v Logan City Council QPEC 63
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Supreme Renovators Pty Ltd v Logan City Council  QPEC 63
SUPREME RENOVATORS PTY LTD
LOGAN CITY COUNCIL
2760 of 2019
Planning and Environment Court
Planning and Environment Court, Brisbane
21 November 2019, ex tempore
21 November 2019
Williamson QC DCJ
The application is dismissed.
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – where the applicant’s development application was refused by Council – where the applicant did not file a notice of appeal within the appeal period prescribed by s. 229 of the Planning Act 2016 – whether the appeal period should be extended under s. 32(2) of the Planning and Environment Court Act 2016 – whether there are sufficient grounds for the Court to extend the appeal period – whether the applicant provided an adequate explanation for the delay.
Planning Act 2016 (Qld), s. 229
Planning and Environment Court Act 2016 (Qld), ss. 32, 37
Kadhem v Trinity Green Development Pty Ltd  QPELR 720
Ms K Buckley for the applicant
Mr B Job QC for the respondent
Shand Taylor Lawyers for the applicant
Minter Ellison Gold Coast for the respondent
- On 16 April 2019, Council resolved to refuse the applicant’s development application, which sought approval for a Service station and Food and drink outlet on land situated at Atlantic Drive, Loganholme. This decision was communicated by way of decision notice, dated 18 April 2019. The applicant received the decision notice from its town planning consultant on 23 April 2019.
- The applicant’s right of appeal against Council’s refusal is provided by s.229 of the Planning Act 2016 (PA). Subsection (3) of that provision prescribes an appeal period of 20 business days, calculated from the time the notice was given to the applicant. The appeal period expired on 23 May 2019. No appeal was commenced by the applicant within the appeal period prescribed by s. 229(3) of the PA.
- The applicant, by its Originating application, seeks two orders: (1) leave to file a notice of appeal against Council’s refusal; and (2) an extension of time under s. 32(2) of the Planning and Environment Court Act 2016 (PECA) to file the draft notice of appeal exhibited to the affidavit of Mr Whiteman.
- The Originating application also seeks relief under the Court’s general excusatory power in s. 37 of PECA. This aspect of the application was not pressed by Ms Buckley, who appeared on behalf of the applicant.
- The application is opposed by Council.
- It is uncontroversial the Court’s power to extend an appeal period is prescribed by s. 32(2) of PECA. This provision states:
“(2) The P & E Court may allow a longer period or different time to take the action if satisfied there are sufficient grounds for the extension.”
- Section 32(2) of PECA makes it clear that an extension of time is not just for the asking. An applicant must demonstrate there are ‘sufficient grounds’ for an extension. This is not a defined term. It is to be given its ordinary meaning.
- There are a number of decisions of this Court identifying matters relevant to the exercise of the discretion under a provision such as s. 32(2) of PECA. I was referred to his Honour Judge Jones’ decision in Kadhem v Trinity Green Development Pty Ltd  QPELR 720, where at paragraph 11, he said:
“Typically in applications such as this the following matters require consideration: the explanation for delay; prejudice to the respondents; public considerations; the merits of the appeal and, consideration of fairness as between the applicants and the other parties. The courts discretion in deciding whether or not to extend time is a wide one and one that ought not be fettered by reference to rigid criterion such as the need for exceptional circumstances.”
- I respectfully agree with his Honour’s observation.
- The applicant submits sufficient grounds have been established here, and the discretion should be exercised in its favour. This, it contends, is so having regard to four considerations. It submits: (1) there is an adequate explanation for the delay; (2) there would be no prejudice occasioned to the Council if the extension was granted; (3) the appeal against Council’s refusal is meritorious; and (4) in the interests of fairness and justice, the extension ought be granted.
- Before dealing with each of the points raised on behalf of the applicant, is necessary to determine the length of the delay which is to be, in effect, cured by an order under s. 32(2) of PECA. For the purposes of this proceeding, Ms Buckley accepted that the relevant period of delay commences 24 May 2019, and ends 1 August 2019. The former represents the day after the applicant’s appeal period expired. The latter represents the day this proceeding was commenced. The delay equates to a period of about two months and one week.
- Is there an adequate explanation for the delay?
- The applicant relies upon the affidavit of Mr Whiteman to provide an explanation for the delay. He is the registered owner of the land the subject of the development application. He is also the sole director and shareholder of the applicant. It is clear from his affidavit that the period of delay can be broken into two parts. First, the period between 24 May 2019 to 9 June 2019. Second, the period between 10 June 2019 to 1 August 2019.
- The first period of delay represents that part of the evidence where Mr Whiteman says he was aware he had a right of appeal against Council’s decision, but was unaware of any prescribed appeal period. At paragraph 22 of his affidavit, it is said he learned the appeal period had expired on 9 June 2019. This was a consequence of advice received from a development manager employed by Puma Fuels, which is the company earmarked to operate the Service station the subject of the development application.
- In support of his explanation, Mr Whiteman made the point that he was not legally represented during the appeal period. He also said that the decision notice did not state the appeal right was constrained by an appeal period.
- I do not accept Mr Whiteman’s evidence establishes an adequate explanation for the applicant failing to exercise the right of appeal prior to 23 May 2019. The explanation provided by Mr Whiteman as to his knowledge of the appeal period is less than fulsome. It contains material gaps, leaving room for doubt as to why the appeal right was not exercised, or sought to be exercised, in a timely way by the applicant.
- It is correct to say the decision notice does not expressly identify that the appeal period is 20 business days. It does, however, refer the reader to those parts of the PA, where the appeal right is prescribed, along with the relevant appeal period. Mr Whiteman did not explain in his affidavit whether he reviewed the relevant parts of the Act referred to in the decision notice, and if not, why not. The failure to provide an explanation of this kind, whilst not fatal in its own right, is of concern.
- This is not the only part of Mr Whiteman’s explanation where there is room for concern. There are other deficiencies in the explanation.
- At paragraph 18 of his affidavit, he points out that he was not legally represented during the appeal period. He did, however, speak to a partner of a law firm in November 2018 about the right of appeal. In particular, he spoke to Mr Hardman, who is a partner of the law firm retained to represent the applicant in this proceeding. The evidence about this discussion lacks any specificity. It is broadly expressed in the affidavit and not supported by any contemporaneous notes. Nor is it supported by evidence from Mr Hardman. There is no evidence as to precisely what was, or was not, discussed as between Mr Hardman and Mr Whiteman. This is in circumstances where they have both sworn affidavits in this proceeding.
- In the absence of direct evidence or contemporaneous notes, I find it difficult to accept that an experienced solicitor, such as Mr Hardman, who regularly appears in this Court, would not have raised the 20 business day appeal period with Mr Whiteman. This represents a material gap in the explanation provided for the delay.
- At paragraph 12 of his affidavit, Mr Whiteman deposes that a copy of the decision notice was provided to him by his town planner on 23 April 2019. There is no evidence from the applicant’s town planning consultant in this proceeding. More particularly, there is no evidence as to when that firm received Council’s decision notice, and how, and in what form, it was provided to the applicant. The absence of this evidence is concerning.
- The failure to disclose the means by which the decision notice was provided to the applicant leaves open a concern that there may be something about the giving of that document which points to a position contrary to Mr Whiteman’s evidence.
- Again, I find it difficult to accept, in the absence of direct evidence or a contemporaneous note, that the giving of the notice included no mention of an appeal right or an appeal period. This is a fair concern given the consequences that flow if the appeal period expires before proceedings are commenced.
- At paragraph 21 of his affidavit, Mr Whiteman speaks of receiving advice from his town planning consultant about the costs associated with filing an appeal against Council’s decision. The fee estimate provided was said to include legal fees estimated by Mr Hardman. There is no evidence about the form, or substance, of the fee advice provided to Mr Whiteman.
- Given the advice received by Mr Whiteman related to the commencement of an appeal, and given the advice was received during the first few days of the appeal period, I find it difficult to accept, in the absence of direct evidence to the contrary, that no mention was made of an appeal period by a solicitor or town planning consultant. This is particularly so in circumstances where they were directing their minds to the commencement of an appeal against Council’s refusal.
- It is, in my view, concerning that no evidence of this kind has been put before the Court by way of an affidavit of Mr Hardman, or the consultant town planner. As I have already observed, Mr Hardman swore an affidavit in this proceeding. There is no mention in that affidavit to which I was referred about a fee estimate. Nor is there any reference to advice provided to Mr Whiteman about the appeal right and appeal period.
- For the reasons given above, I am not satisfied the evidence establishes a credible explanation for the first period of delay. This, however, is only one of two not inconsiderable difficulties the applicant faces in demonstrating an adequate explanation for the delay.
- The second period of delay is taken from 10 June 2019 to 1 August 2019.
- There is no doubt on the evidence that Mr Whiteman was aware that the applicant’s right of appeal had expired on 10 June 2019. The material suggests Mr Whiteman took steps to address the matter after 10 June 2019. At paragraph 23 of his affidavit, he said he contacted Mr Hardman for the purpose of commencing an appeal out of time. The evidence does not, however, establish when Mr Hardman’s firm was retained, and when instructions were provided to commence proceedings. Importantly, I note at paragraphs 24 and 25 of Mr Whiteman’s affidavit, he states:
“(24) I instructed Mr Hardman to reach out to Counsel to assist with settling my application and Notice of Appeal. Since 10 June 2019, I have been in regular contact with both my solicitor and Counsel to progress the filing of my material.
(25) I say that I have done everything I can since retaining Mr Hardman to progress my application as expeditiously as possible.”
- Taken at face value, the evidence establishes that Mr Whiteman retained a solicitor and took all steps he could to progress this application expeditiously. That evidence is difficult to reconcile with this point: why did it take from 10 June 2019 to 1 August 2019 to file this proceeding?
- Mr Whiteman’s affidavit does not answer this question. The difficulty for the applicant, as conceded by Ms Buckley, is that there is no evidence before the Court to answer this question. This is concerning given it is this period which accounts for a significant proportion of delay.
- In my view, the evidence at paragraphs 24 and 25 of Mr Whiteman’s affidavit only raise more questions than answers. It leaves one in a position where there is a genuine concern that the explanation provided is less than fulsome, if not inadequate, in the circumstances.
- Mr Whiteman seeks to explain the total period of delay by reference to three matters, namely: (1) he was not aware of the appeal period; (2) he was not in a good frame of mind, given particular circumstances involving his immediate family, and inter-related financial difficulties; and (3) he was waiting on an updated economic need report before giving a final instruction to file a notice of appeal.
- The three matters raised above do not individually, or collectively, provide any explanation for the delay beyond 10 June 2019. More particularly, as was conceded by Ms Buckley:
- (a)by 10 June 2019, Mr Whiteman was aware the relevant appeal period had expired;
- (b)the material establishes that Mr Whiteman had returned to a position where his state of mind/financial position had materially improved - this occurred at the end of May 2019, where he, inter alia, made a development application to the Council for a dwelling and shed over the same land that is the subject of the Service station application; and
- (c)the updated economic need advice had been received in the first week of June, that is, prior to 10 June 2019, and was no longer an impediment to the giving of instructions to commence an appeal.
- Given all of the above, I am not satisfied an adequate explanation has been provided by the applicant for a delay of some two months and one week. The state of the material is such that I have little confidence the explanation offered has been as fulsome as possible in the circumstances.
- The absence of an adequate explanation is not, as Ms Buckley correctly submitted, of itself fatal to the application. I was invited to take into account three other considerations.
- First, it was submitted the material includes a draft notice of appeal, which reveals that significant resources have been applied to advance the applicant’s right of appeal. Further, the appeal was said to be a meritorious one.
- Whilst I accept the draft notice of appeal evidences that positive steps have been taken to advance the applicant’s appeal right, I am not persuaded it is necessary to go so far in an application such as this to say the appeal is meritorious. Consistent with Mr Job QC’s fair and sensible concession, the exercise of the discretion here can be approached on the footing that Council does not suggest the appeal, if filed, would be hopeless, or lack utility. These matters favour the applicant’s position.
- Second, Ms Buckley emphasised that the relief sought could be granted absent any prejudice to Council. This, again, was fairly and sensibly conceded by Mr Job QC. Like the point considered above, this favours the exercise of the discretion in the applicant’s favour.
- Third, it was submitted that an order extending time would be in the interests of fairness and justice. As I understood Ms Buckley’s submission, this point was advanced on the footing that this case involved an unsophisticated litigant who did not appreciate there was a prescribed appeal period, and whilst recognising that an appropriate enquiry should have been made, failed to comply with the PA for reasons other than wilful disregard. This point ultimately requires it to be accepted that the explanation offered by Mr Whiteman is an adequate and credible one. For reasons given above, I am not so satisfied on the evidence.
- The starting position is a recognition that appeal periods are prescribed in the PA for a reason. They provide certainty for applicants, Councils, submitters and Government departments that are potential parties to proceedings in this Court. They are not to be treated as guidelines, or as aspirational. Nor should they be approached as if an extension of time is there for the asking where a respondent to such a request would suffer no prejudice.
- The power to extend time is clear. It turns on an applicant demonstrating sufficient grounds under s.32(2) of PECA. Here, a significant factor in the exercise of the discretion is the failure to provide an adequate explanation for the delay. This is not of itself fatal. However, it attracts significant weight given there has been a less than fulsome explanation for the delay. When combined with the total length of the delay, these factors are, in my view, decisive. I am not satisfied the discretion should be exercised in the applicant’s favour.
- This is not overcome because there is an absence of prejudice on Council’s part in the event the application was acceded to. Nor is it offset by reason that the proceeding, if filed, has prima facie merit.
- Mr Job QC, in response to a question I asked, emphasised the importance of certainty attaching to appeal periods. He submitted that it was of particular importance in this case given the application refused by Council was impact assessable, and attracted a number of submissions during the public notification period.
- The submission developed was, to the effect, that the submitters to the development application, being third parties, were entitled to expect to move on with their lives once it was refused by Council, and no appeal was commenced. This is a fair expectation in the circumstances here, and would be cut across in the event the time to file an appeal was extended, some six months after the appeal period finished.
- This is a matter which works against the submission that an extension would be consistent with the interests of fairness and justice. It is also a consideration that further militates against granting the relief sought.
- In the result, I am not satisfied the applicant has established there are sufficient grounds to allow an extension to the appeal period in relation to Council’s refusal.
- The originating application is dismissed.
- I will hear from the parties as to the need, if any, for consequential orders.
- Published Case Name:
Supreme Renovators Pty Ltd v Logan City Council
- Shortened Case Name:
Supreme Renovators Pty Ltd v Logan City Council
 QPEC 63
21 Nov 2019