Johnston v Noosa Shire Council
[2023] QPEC 3
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- Unreported Judgment
- Johnston v Noosa Shire Council[2023] QPEC 3
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Johnston v Noosa Shire Council[2023] QPEC 3
Johnston v Noosa Shire Council[2023] QPEC 3
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Johnston v Noosa Shire Council [2023] QPEC 3 |
PARTIES: | MARK JOHNSTON (Applicant) v NOOSA SHIRE COUNCIL (Respondent) |
FILE NO/S: | 136/2022 and 165/2022 |
DIVISION: | Planning and Environment |
PROCEEDING: | Originating application |
DELIVERED ON: | 17 February 2023 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 16 February 2023 |
JUDGE: | Cash DCJ |
ORDERS: | The application is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – where the applicant owns premises used for short-stay accommodation – where the use was subject to approval by the respondent council – where the respondent council refused approval – where the applicant purported to commence an appeal against the decision to refuse approval – where the notice of appeal was filed outside of the limitation period – whether an extension of time should be given pursuant to section 32 of the Planning and Environment Court Act 2016 (Qld) – whether there are sufficient grounds to extend the time within which to commence the appeal – whether the applicant has given an adequate explanation for the delay in commencing the appeal |
LEGISLATION: | Planning Act 2016 (Qld), s 229(3)(g) Planning and Environment Court Act 2016 (Qld), s 32, s 37 |
CASES: | Kadhem v Trinity Green Development Pty Ltd [2014] QPEC 36; QPELR 720, [11] applied Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63; [2020] QPELR 805, [8]-[9], [16] and [41] considered |
APPEARANCES: | K W Wylie for the applicant M J Batty with J E Bowness for the respondent |
SOLICITORS: | P&E Law for the applicant McCullough Robertson for the respondent |
- [1]The applicant owns premises at Peregian Beach within the local government area administered by the respondent. The land is improved with a detached house. The applicant says he uses the premises for the purpose of short-stay accommodation, a use that he says occurred both before and after the adoption of the Noosa Plan 2020. On 1 February 2022, the respondent amended its laws regulating the use of premises for short-stay accommodation. One effect of the amendments was to make it an offence to undertake such use without a current approval and to provide a process by which approval might be sought and given. Because of these amendments, on 23 March 2022, the applicant sought approval from the respondent for the use of the premises for short-stay accommodation. The application for approval was refused. There followed an unsuccessful attempt to have the respondent review and reverse the decision. Notice of the respondent’s decision to confirm the refusal was given to the applicant on 27 July 2022 (‘the review decision’).
- [2]In proceeding 136/2022 the applicant purports to appeal against the decision to refuse approval to use the premises for short-stay accommodation. The effect of section 229(3)(g) of the Planning Act 2016 (Qld) (‘PA’) is that the appeal should have been commenced withing 20 business days of the applicant being given notice of the review decision. It was not. The last day for filing within time was 25 August 2023. The notice of appeal was not filed until 27 September 2023, one calendar month or 23 business days[1] after the expiration of the appeal period. The applicant has abandoned an argument that he had a right to appeal that did not expire on 25 August 2023. He accepts that proceeding 136/2022 was commenced out of time. At first, the applicant sought to remedy this defect by an application in proceeding 136/2022. That was arguably an inappropriate mechanism because of concern about the competency of the purported appeal. In any event, the application in a pending proceeding has been overtaken by an originating application seeking declarations or orders, which is proceeding 165/2022. The effect of the orders sought by the applicant in 165/2022 would be to extend time within which to commence the appeal that is proceeding 136/2022.[2]
- [3]The respondent opposes the application.
- [4]There is no doubt that the court has the power to extend time within which to commence an appeal. Section 32 of the Planning and Environment Court Act 2016 (Qld) (‘PECA’) deals with the matter expressly, providing:
32 P&E Court may extend period to take an action
- (1)This section applies if the rules or a relevant enabling Act requires an action relating to a P&E Court proceeding or proposed P&E Court proceeding to be taken within a particular period or before a particular time, even if the period has ended or the time has passed.
- (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.
- [5]In written submissions the applicant also placed reliance upon section 37 of PECA, a provision that provides for a more general excusatory power and which is not conditioned on there being ‘sufficient grounds’ for the exercise of the power. At the hearing, the applicant eschewed reliance upon section 37 and accepted, correctly in my view, that section 32 governs the present application.
- [6]The parties agreed as to the legal principles to be applied when the P&E Court is asked to allow an extension pursuant to section 32 of PECA. Both cited a passage from the decision of R S Jones DCJ in Kadhem v Trinity Green Development Pty Ltd,[3]
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.
- [7]
- [8]It is also to be borne in mind that the exercise of the power conferred by section 32 is in the nature of an indulgence or allowance. If exercised, it allows a dilatory party to avoid the consequences of their inaction. This brings into sharp focus the reasons for such limitation periods. As was observed in Supreme Renovators Pty Ltd v Logan City Council,[6]
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.
- [9]The respondent fairly conceded that it would suffer no prejudice if the application were to succeed. It was also conceded that the appeal itself was not without merit, in the sense that it was arguable, and not ‘hopeless’ or lacking utility. Instead, the respondent’s submissions centred on what it submitted was the absence of adequate explanation for the delay in commencing the appeal and whether allowing the extension would achieve fairness between the parties while serving the interests of justice.
- [10]It is with these principles in mind that I turn to the evidence in the application and the submissions of the parties.
- [11]
Date | Event |
23 March 2022 | Applicant applies to the respondent for approval to use the premises for short-stay accommodation. |
24 June 2022 | The respondent indicates by email the application is likely to be refused. The applicant replies with a request that the respondent reconsider. |
29 June 2022 | The respondent (by a letter dated 24 June 2022) gives notice that the application is refused. The reasons cited are that recent renovations to increase the number of bedrooms occurred without building approval and as a result the use of the premises for short-stay accommodation was not an existing lawful use at the time of the adoption of the Noosa Plan 2020. The applicant replies seeking to confirm that his email of 24 June 2022 is sufficient to trigger a review of the decision. The council confirms that it is. |
27 July 2022 | The respondent (by a letter dated 4 July 2022) gives notice that the original decision is confirmed. The respondent gives notice that use of the premises for short-stay accommodation must cease within six weeks of the date of the letter. The appeal period pursuant to section 229(3)(g) of the PA begins. |
17 August 2022 | The respondent emails the applicant seeking confirmation the premises are no longer being used for short-stay accommodation. |
23 August 2022 | The applicant asks the respondent to allow an extension to continue using the premises for short-stay accommodation until February 2023. In the same email the applicant advises he has ‘re-engaged’ with a building certifier in relation to the recent renovations. |
25 August 2022 | The appeal period pursuant to section 229(3)(g) of the PA expires. |
29 August 2022 | The respondent emails the applicant and advises that it declines the requested extension and requires the use to cease by 14 October 2022 (a further six weeks from the date of the email). |
31 August 2022 | The applicant replies with an email stating: ‘I will be lodging a formal appeal to this decision and am currently sourcing an appropriate planning solicitor. Please provide me required documents to start this process.’ |
1-2 September 2022 | Mr Manning of P&E Law has ‘preliminary contact’ with the applicant’s partner who is seeking advice in relation to a possible extension to continue to use the premises for short-stay accommodation. Mr Manning advised that an appeal was possible, but the appeal period appeared to have expired on 1 August 2022.[9] There was also discussion of whether review decision was defective, such that a proceeding to challenge to the decision could be commenced without regard to an appeal period. |
- [12]It will be necessary to consider some events that occurred between this first contact with P&E Law and the filing of the notice of appeal, nearly a month later, on 27 September 2022 when assessing the submissions of the parties.
- [13]Acknowledging that an application of this kind ‘would normally call for the explanation to be given to the court as fulsomely as could possibly be done’,[10] the applicant relies upon this evidence to submit strong discretionary grounds exist favouring the extension. To support that submission the applicant relies upon the following facts said to have been established by the evidence. First, the applicant did not know of any specific right to appeal when he was given the review decision. Secondly, the respondent did not in any correspondence with the applicant advise him he might have a right to appeal the refusal. Thirdly, the applicant’s ongoing correspondence with the respondent about continuing the use for a period of six months does not suggest the applicant simply let matters rest without action. Fourthly, when the respondent declined to permit the use to continue as the applicant requested, the applicant advised of his intention to appeal that decision, which is said to confirm his ignorance of a right to appeal the decision to refuse his application for approval. Finally, the applicant then acted swiftly to obtain legal advice and became aware of the possibility of challenging the respondent’s decision refusing approval for short-stay accommodation.
- [14]The applicant then relies upon the following two paragraphs of his affidavit.
17 Had I been aware of my rights to appeal the Review Decision, I would have taken immediate action within the required period. I was unable to do this due to the omission of the appeal rights in the Review Decision.
18 It is clear from my correspondence with the Respondent that I was committed to challenging the decisions of the Respondent at every known opportunity. This includes my correspondence of 31 August 2022 where I sought to appeal the extension of time granted to comply with the requirements of the Review Decision.
- [15]In my view, none of this adds up to an adequate explanation for the delay from when the applicant was made aware of the review decision until solicitors were approached on 1 September 2022. That is so for the following reasons.
- [16]It may be that the applicant was not aware of the specific right to appeal, in the sense that he did not know which act or provision conferred such a right. But the applicant’s own material makes it clear that he is not unsophisticated. The applicant deposes that the use of the word ‘appeal’ in his email of 31 August 2022 was informed by his ‘experience in other legal matters’. These matters are not explained, and I would not speculate about what they might be. It is enough to observe that if the applicant has sufficient knowledge and experience to think he could appeal the respondent’s decision to not allow a six-month extension to the use, it would be surprising if he thought he could not appeal the decision to refuse approval of the use.
- [17]It is true that the respondent did not advise the applicant he had a right to appeal the refusal. But, as the applicant correctly conceded, the respondent had no obligation to do so.[11] More importantly, the applicant’s own lack of knowledge cannot provide ‘sufficient grounds’ for allowing him an extension of time within which to appeal. In this regard the observations of Keane JA in Noonan v MacLennan & Anor,[12] a decision concerning the limitation period for defamation proceedings, are instructive:
Mere ignorance of the strict time limits fixed by the Act cannot afford a reasonable basis for not complying with them. Generally speaking, ignorance of the law has never been thought to be a reasonable basis to relieve a person of the consequence of non-compliance with the law.
- [18]This is sufficient to deal with the applicant’s claim that his inability to act during the appeal period was ‘due to the omission of the appeal rights in the Review Decision.’ I also cannot accept the applicant’s assertion that he ‘was committed to challenging the decisions of the Respondent at every known opportunity.’ The correspondence makes it clear that the applicant’s interest was in delaying the implementation of the respondent’s decision. He did nothing to obtain advice about his rights until his partner spoke to Mr Manning (about the extension) more than a month after he had been apprised of the respondent’s review decision. Even if the applicant did not know he could appeal the refusal of his application, something which I doubt, the fact he sought no advice about this does not assist his request for an extension of time within which to appeal. While it is true that after 29 August 2022 the applicant quickly arranged (via his partner) to obtain solicitor’s advice, this does not make satisfactory the delay up until that point.
- [19]There is then the matter of further delay from 1 September 2022 until 27 September 2022 when the notice of appeal was filed. The sequence of salient events is set out in exhibit 2. These include a delay of a about a week while a costs agreement was prepared and considered, a delay of ten days while a draft notice of appeal was prepared and a delay of four days before final instructions were given to file the notice of appeal. Some of this delay is understandable. The final four days included a weekend (though it is a little difficult to understand why the applicant, who says he did not even know he could appeal, needed that time to consider the draft notice of appeal which had been settled by a firm of solicitors with a great deal of experience in planning law). As well, the preparation of a notice to appeal is to be attended to with care.[13] But even allowing for these matters, there remains a not-insubstantial delay between the first consultation and the filing of the notice of appeal. Some of this delay is unexplained. There was some advice of the possibility the circumstances raised a ‘deemed refusal’ for which the appeal period is ‘any time after the deemed refusal happens’. On its own that might explain a lack of urgency, but it falls away as an explanation once it is remembered that at the same time Mr Manning suggested the appeal period may have expired as early as 1 August 2022. And, as the respondent submitted, there are gaps in the evidence about what occurred. For example, Mr Manning deposes that he requested some documents relevant to the appeal and they were provided on 20 September 2022. The court has not been informed when those documents were requested, how long it was before they were provided and, if there was some delay, why it occurred. It is also unclear whether any need for urgency was pressed upon the applicant, as may have been expected in light of the initial thought the appeal period had expired in early August. In this regard it is notable that the applicant's partner, who first consulted Mr Manning, has not provided evidence in the application.
- [20]I do not by what I have written intend to criticise Mr Manning or his firm. There are possible explanations for this apparent lack of speed that are not attributable to the conduct of the lawyers. But the position simply is that I am not informed about matters that are germane to the present application. There are ‘material gaps, leaving room for doubt as to why the appeal right was not exercised, or sought to be exercised, in a timely way’.[14]
- [21]Some additional matters raised by the applicant need be addressed. He points to the possibility he may suffer prejudice if the application were refused. It was submitted the applicant would be deprived of the benefit of the use, and the income it provides, for a longer period as he again sought approval, waited for that to be decided and then appealed if he again received an unfavourable response. It was said by the applicant that trial of this dispute between the parties in the P&E Court was almost a certainty,[15] and because the matter was ripe for litigation now it should be allowed to proceed. The potential for there to be prejudice to the applicant may be a relevant consideration. But I am not persuaded it is determinative in this case. That is because the probability of the same dispute being litigated in this court in the future is impossible to judge. A number of possibilities occur to me. One is that the applicant obtains the necessary building certification and can demonstrate to the respondent that the use of the premises for short-stay accommodation should be allowed. Another might be that on a further assessment of the merits of the intended appeal it is not thought to be economically sensible to pursue. In these circumstances I am not persuaded the application should succeed because to refuse it would lack utility.
- [22]The other matter to discuss is a submission of the applicant that appeared to suggest an assessment of the merits of the intended appeal favours granting an extension. While the merits of the appeal, or more precisely an absence of merit, may be an important consideration, I am aware of no authority that suggests a judge should assess the strengths of the applicant’s case and, if it is thought the applicant will win the appeal, permit an extension of time that is not otherwise justified. In fairness to Mr Wylie, he accepted in oral submissions that an assessment of the merits of the intended appeal does no more than to remove a potential barrier to an extension of time.
- [23]In the end, this is an application that involves a delay that might not be properly described as lengthy but is still substantial. There is a heavy burden on the applicant to give detailed and adequate reasons for that delay. I am not persuaded that he has done so. The application will be refused, and I will hear the parties as to any consequential orders that may be necessary.
Footnotes
[1]Having regard to gazetted public holidays in the Noosa Council area.
[2]The relief initially sought in 165/2022 extended to declarations to the effect of treating the respondent’s conduct as a ‘deemed refusal’ with the result that the appeal was not commenced out of time. This relief was abandoned before the hearing of the application.
[3][2014] QPEC 36; QPELR 720, [11].
[4]Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63; [2020] QPELR 805, [8]-[9].
[5]Driesen v Gold Coast City Council [2015] QCA 85; (2015) 207 LGERA 425, [14].
[6][2019] QPEC 63; [2020] QPELR 805, [41].
[7]Respectively court documents 5 and 7 in proceeding 136/2022. The applicant also read the affidavit of Mr Manning filed in proceeding 165/2022 (court document 2 in that proceeding), but this merely exhibited the earlier affidavits of the applicant and Mr Manning.
[8]See also exhibit 2 tendered at the hearing of the application.
[9]This was an understandable mistake arising from the date of the respondent’s letter confirming the original decision. While the letter was dated 4 July 2022, it was not communicated to the applicant until 27 July 2022 and that is when the appeal period commenced.
[10]Dreisen v Gold Coast City Council [2015] QCA 85; (2015) 207 LGERA 425, [55]. In this context ‘fulsomely’ must be understood as referring to the original meaning of ‘fulsome’ as large in quantity, abundant or plentiful – see Butterfield, ‘Fowler’s Dictionary of Modern English Usage’, 4th ed, OUP 2015, 333.
[11]In contrast to the requirement of the PA for a ‘decision notice’ to state ‘any appeal rights that the recipient of the notice has in relation to the decision’.
[12][2010] QCA 50; [2010] 2 Qd R 537, [22].
[13]See, generally, Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59.
[14]Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63; [2020] QPELR 805, [16].
[15]Mr Wylie initially put the submission in stronger terms, describing this as ‘inevitable’, but in reply conceded the probability was something less than that.