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Roseingrave v Brisbane City Council[2024] QPEC 7

Roseingrave v Brisbane City Council[2024] QPEC 7

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Roseingrave & Anor v Brisbane City Council [2024] QPEC 7

PARTIES:

JEROME JOSEPH ROSEINGRAVE & NANCY STELLA CASTILLO

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

2169 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

12 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2023 and 20 February 2024

JUDGE:

Williamson KC DCJ

ORDER:

The appeal is listed for review on 15 March 2024 to hear from the parties about:

  1. the orders to be made to give effect to these reasons; and
  2. costs with respect to the adjournment granted on 20 November 2023.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where appeal against a decision to refuse a claim for compensation under s 31 of the Planning Act 2016 – whether the claim was made out of time – whether the time limitation period should be extended under s 37 of the Planning and Environment Court Act 2016.

CASES:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Roseingrave & Anor v Brisbane City Council No. 2 [2022] QPEC 43

LEGISLATION:

Planning Act 2016, ss 31, 45, 60, 63 and 105

Planning and Environment Court Act 2016, ss 37, 43, 46 and 47.

COUNSEL:

Mr P O'Shea (Solicitor) for the appellants

Mr N Loos and Ms G Kiss of Counsel for the respondent

SOLICITORS:

O'Shea Lawyers for the appellants

City Legal-Brisbane City Council for the respondent

Introduction

  1. [1]
    On 6 April 2023, the appellants’ legal representative made a claim for compensation to Council under s 31 of the Planning Act 2016 (the Act).  The claim was advanced in reliance upon a planning scheme amendment having application to the appellants’ land situated at Old Northern Road, Everton Park (the land).  The claim asserts the change to Council’s planning scheme, namely a Biodiversity overlay, adversely impacts on the market value of the appellants’ interest in the land.  Applying the ‘before and after’ method of valuation, it is asserted the adverse planning scheme change has reduced the market value of the land in the order of $3,000,000.
  2. [2]
    By letter dated 11 July 2023, Council’s Chief executive officer advised the appellants that their claim for compensation was refused.  Notice was given of the decision, which contained reasons for the refusal.  The reasons are in the following terms:

“Council considers that the Claim does not meet the statutory requirements for a claim for compensation under section 31 of the Act, because:

  1.  your clients’ superseded planning scheme request dated 20 November 2020 was not properly made;
  1.  a development application was not ‘made’ for ‘the development’ as required by section 31(3)(b) of the Act;
  1.  the planning change the subject of your clients’ claim is not an ‘adverse planning change’ because it is about the relationships between, the location of, or the physical characteristics of, buildings, works or lots, and the yield achievable is not substantially different from the yield achievable before the change;
  1.  the Claim was otherwise made out-of-time.”
  1. [3]
    On 31 July 2023, the appellants commenced this appeal against Council’s refusal of the claim for compensation. 
  2. [4]
    Council resists the appeal and maintains the claim for compensation should be refused.  In support of its position, Council filed a document titled ‘Respondent’s consolidated grounds for refusal’ (Consolidated grounds for refusal).  The consolidated grounds for refusal are, in substance, the same as those set out in the letter dated 11 July 2023. 
  3. [5]
    Paragraphs 1(a) to (c) of the Consolidated grounds for refusal are in the following terms:

“1. The Appellants’ claim under s 31 of the Planning Act 2016 (Qld) (Planning Act) the subject of this proceeding should be refused for the following reasons:

  1.  the superseded planning scheme request was not properly made;
  1.  a development application was not made ‘for the development’ as required by section 31(3)(b) of the Planning Act;
  1.  the claim for compensation is out of time;”
  1. [6]
    This appeal was listed before me to determine two issues, namely:
    1. whether any, or all, of the points identified in paragraphs 1(a) to (c) above are correct and lead to the conclusion that the appellants have no right of appeal in relation to a claim for compensation under the Act; and
    2. whether any, or all, of the reasons identified in paragraphs 1(a) to (c) above can be excused under s 37 of the Planning and Environment Court Act 2016 (the Court Act), thereby enabling this appeal to be treated as a valid one and remain on foot.
  2. [7]
    The appellants contend the appeal was validly instituted or, in the alternative, ought be permitted to proceed to hearing on the footing that any defect or non-compliance with the Act can, and should, be excused under s 37 of the Court Act.
  3. [8]
    Council joined issue with the contentions advanced on behalf of the appellants.
  4. [9]
    The primary issue to be determined, in my view, is that identified in paragraph 1(c) of the Consolidated grounds for refusal.  This point goes to whether the claim for compensation was made in time, informing whether Council had power to receive and decide the claim for compensation.  This appeal was filed on the assumption that Council did have power to receive and decide the appellants’ claim, and in doing so, gave rise to a right of appeal under the Act.  I will deal with this issue first.

Was the appellants’ claim for compensation made in time?

  1. [10]
    Section 31 of the Act creates a right for an ‘affected owner’ to make a claim for compensation arising out of an ‘adverse planning change’.  One of three specific circumstances must exist before the right to make the claim arises (ss 31(2), (3) and (4)).  The circumstance of relevance to this proceeding is prescribed in s 31(3), which is in the following terms:

“(3) An affected owner may claim compensation in relation to development that is or becomes assessable development after the adverse planning change has effect, if —

  1.  the local government refuses a superseded planning scheme request in relation to the development; and
  1.  a development application has been made for the development; and
  1.  the development application is—
  1.  refused; or
  1.  approved with development conditions; or
  1.  approved in part, with or without development conditions.”
  1. [11]
    The appellants contend that s 31(3) is satisfied here because:
    1. by letter dated 16 December 2020, Council’s delegate refused a superseded planning scheme request made by the appellants for development on the land; and
    2. a development application for substantially the same development the subject of the superseded planning scheme request referred to in (a) was made to Council by the appellants; and
    3. the development application referred to in (b) was refused by the Council and the subject of an applicant appeal to this Court, which was dismissed by order of 28 October 2022.
  2. [12]
    Council took issue with these contentions, to varying degrees, but if it is assumed s 31(3) of the Act is engaged here and the appellants had a right to make a compensation claim, it is necessary to turn to s 31 (6) of the Act to identify the time limitation for the making of such a claim.  The relevant time limit for the appellants’ claim for compensation was prescribed in s 31(6)(b), which states, in part:

“(6) An affected owner must make a claim for compensation to a local government within—

…

  1.  for subsection (3)…— 6 months after notice of the decision under subsection (3)(c)… is given to the affected owner.”
  1. [13]
    It was submitted on behalf of the appellants that their claim was made within the time stated in s 31(6)(b) of the Act.  This submission assumes that ‘notice of the decision’ for the purposes of s 31(6)(b) was given on 28 October 2022, being the order dismissing the appeal against the refusal of the appellants’ development application discussed in paragraph [11](b).  If the six month period stated in s 31(6)(b) is taken to run from 28 October 2022, the appellants’ claim for compensation was made to Council on 6 April 2023, being a date within six months of the order of 28 October 2022. 
  2. [14]
    Council joined issue with the critical assumption that underlies this conclusion.
  3. [15]
    It was submitted on Council’s behalf that ‘notice of the decision’ in s 31(3)(c) of the Act is to be treated as a reference, in this case, to the decision notice given by Council’s delegate in February 2020, rather than the order of the Court.  If this is accepted, the appellants’ right to make a claim for compensation came to end in August 2020, some two years and eight months before the claim was in fact made to Council.
  4. [16]
    Against this background, it can be said that the question to be examined is whether the order of 28 October 2022 is, for the purposes of s 31(6)(b), ‘notice of the decision’, namely notice of a refusal of the development application referred to in paragraphs [11](b) and (c).
  5. [17]
    In answering this question, the appellants’ case strikes an immediate difficulty that was not confronted; it arises out of the terms of the order made on 28 October 2022.  The appellants’ case assumes the order of 28 October 2022 is a refusal of their development application in circumstances where the order does not, in terms, purport to ‘refuse’ the development application.  The order dismisses an appeal instituted under the Act.  Absent a deeming provision, the order does not, in my view, engage s 31(3)(c) of the Act; it is not, in and of itself, a refusal.
  6. [18]
    The difficulty for the appellants’ case only increases once it is appreciated that: (1) the order of 28 October 2022 was made by the Court exercising its appellate jurisdiction under s 47 of the Court Act; (2) s 47 of the Court Act confers a power on the Court, which is not shared with the assessment manager at first instance; (3) a decision made by the Court under s 47 of the Court Act may, but not in all cases, be treated as a decision made by the assessment manager at first instance (s 47(3) of the Court Act); and (4) the order of 28 October 2022 is not one that s 47(3) of the Court Act suggests is to be treated as one made by the assessment manager at first instance. 
  7. [19]
    Central to the matters traversed in paragraphs [17] and [18] above is the proposition that, while the appellants’ appeal to the Court was by way of hearing anew (s 43 of the Court Act), it should not be assumed that all decisions made by the Court under s 47 of the Court Act (finalising an appeal) are treated as a decision by the assessment manager at first instance.  Rather, it is necessary to look at the decision and terms of the order made by the Court in the light of the Act and the Court Act to ascertain the true position, particularly for the purposes of s 31(6)(b). 
  8. [20]
    The express words of s 31(6)(b) of the Act do not resolve whether the order of 28 October 2022 is to be treated as notice of a decision to refuse a development application.  It is necessary to look more broadly.  A useful starting point is s 63 of the Act. 
  9. [21]
    Section 63 sits within Chapter 3, Division 2 of the Act, which deals with an assessment manager’s decision and how that decision is to be communicated to an applicant for development approval.  Relevantly, the heading to the provision is ‘Notice of Decision’. 
  10. [22]
    A review of s 63 reveals it prescribes, among other things, when a decision notice should be given by an assessment manager.  It also deals with requirements going to the form and content of a decision notice.  Relevantly for this case, s 63(2)(a) provides:

“(2) The notice must be in the approved form and state—

  1.  whether the application is approved, approved in part or refused; and ….”
  1. [23]
    That the decision notice must contain a statement as to whether an assessment manager has approved, approved in part or refused a development application mirrors the assessment manager’s decision making power found in s 60 of the Act.  For an impact assessable development application such as is relevant here, s 60(3) of the Act states:

“(3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—

  1.  to approve all or part of the application; or
  1.  to approval or part of the application, but impose development conditions on the approval; or
  1.  to refuse the application.”
  1. [24]
    For completeness, it can be observed that, subject to s 105(8), the requirements stated in s 63 also apply to the Minister where a call in notice has been issued under the Act.  The Minister, like an assessment manager, will issue a decision notice for a call in decision.
  2. [25]
    Having regard to ss 63 and 105(8), notice of a decision about a development application under the Act is given by way of decision notice.  Such a notice can engage s 31(3)(c) and (6)(b) of the Act.  As a consequence, time to make a compensation claim to which s 31(6)(b) applies commences when the affected owner has received the relevant decision notice.  In this case, the appellants did not make their claim for compensation within six months of receiving the decision notice communicating the decision to refuse their development application under s 60 of the Act. 
  3. [26]
    For the appellants’ argument to succeed in relation to the calculation of time, it must be accepted that the period stated in s 31(6)(b) restarts each time an affected owner receives ‘notice of the decision’ under s 31(3)(c).  This proposition can be accepted where there is an appeal to this Court that results in a change to the decision at first instance.  The Court, in that circumstance, is setting aside the original decision and replacing it with a new decision.  That it is a new decision treated as if it were made by the decision maker at first instance is supported by s 47(3) of the Court Act, which I will turn to shortly.  Importantly, a circumstance involving the making of a new decision can be distinguished from this case where the order of 28 October 2022 did not change the decision at first instance.  It merely ‘confirmed’ the original decision.
  4. [27]
    This background begs the following question: where a decision made by the Court on appeal does not change but rather ‘confirms’ an assessment manager’s decision at first instance, can that confirmation engage s 31(6)(b) of the Act?
  5. [28]
    I was not directed to any provision of the Act that answers this question.  It is, as a consequence, necessary to turn to the Court Act.
  6. [29]
    Part 5, Division 1 of the Court Act deals with ‘Planning Act’ proceedings.
  7. [30]
    Section 47(1) of the Court Act prescribes what the Court must do when deciding a Planning Act appeal.  The provision states:

“(1) In deciding a Planning Act appeal, the P&E Court must decide to do 1 of the following (the appeal decision) for the decision appealed against—

  1.  confirm it;
  1.  change it;
  1.  set it aside and—
  1.  make a decision replacing it; or
  1.  return the matter to the entity that made the decision appealed against with directions the P&E Court considers appropriate.”
  1. [31]
    The order of 28 October 2022 was recorded in the second sentence of paragraph [115] of the published reasons for judgment: Roseingrave & Anor v Brisbane City Council No. 2 [2022] QPEC 43.  The reasons state:

“[115] For the reasons given, the appellants have not discharged their onus.  The appeal is dismissed.”

  1. [32]
    The order of 28 October 2022 dismissing the appellants’ appeal has, for the purpose of s 47(1) of the Court Act, the effect of confirming the decision appealed against.  In simple terms, this is because the order did not, in terms, or in substance, change or set aside the earlier decision made by the assessment manager.  The original decision remains unchanged.  The original decision constitutes the refusal.
  2. [33]
    Section 43 of the Court Act provides that an appeal to the Court proceeds by way of hearing anew.  This provision, as a general proposition, suggests the ‘P&E Court’ in exercising its appellate function does so standing in the shoes of an assessment manager.  This general proposition can be accepted as correct, to a point.  For example, s 46(2) of the Court Act speaks of s 45 of the Act applying ‘as if…the P&E Court were the assessment manager’.  This can be contrasted with s 47(3) of the Court Act, which draws a distinction between different types of decisions made by the Court under the Court Act.  The provision is in the following terms:

“(3) The appeal decision (other than one to confirm the decision appealed against or to set it aside and return the matter) is taken, for the Planning Act (other than Chapter 6), to have been made by the entity that made the decision appealed against.” (emphasis added)

  1. [34]
    Section 47(3) identifies when a decision made by the Court is treated for the ‘Planning Act’ as one made by the assessment manager at first instance.  Importantly, the provision makes clear that not all decisions by the Court share this character.  A decision, such as here, that involves confirming the assessment manager’s decision to refuse a development application is expressly excluded as one being made by the assessment manager at first instance.  The ‘confirmation’ of an earlier decision is therefore, in my view, not a new decision under s 60 of the Act.
  2. [35]
    This is important for the application of s 31(3)(c) and (6)(b) of the Act to this case.
  3. [36]
    Both provisions, in my view, are engaged by decisions made under, inter alia, s 60 of the Act.  The order of 28 October 2022 is not such a decision.  As a consequence, it is my view that, for the purpose of s 31(6)(b) of the Act, ‘notice of the decision under subsection 3(c)’ here:
    1. captures the decision notice for the development application that was refused; and
    2. does not capture the order of 28 October 2022.
  4. [37]
    I accept Council’s ultimate submission that, assuming the appellants had a right to make a claim for compensation under s 31(3) of the Act, the time for doing so commenced when they received the decision notice communicating refusal of their development application.  That time came to end in about August 2020.
  5. [38]
    Mr O'Shea, who appeared for the appellants, made, in essence, three points about the proper interpretation of s 31 of the Act.  The points, as I apprehended them, were as follows.  Each point assumes the order of 28 October 2022 is notice of a decision refusing the appellants’ development application.
  6. [39]
    First, it was contended that the phrase ‘notice of the decision’ in s 31(6) of the Act does not expressly exclude the order of 28 October 2022.  The absence of an express exclusion was said to be important given, as a matter of context, s 31 is a beneficial provision conferring a right to claim compensation for ‘affected owners’.
  7. [40]
    Second, Mr O'Shea pointed out that s 31(3)(c) of the Act does not, on its face, limit the relevant refusal to one of a local government – that is, the provision does not expressly exclude the order of 28 October 2022.  In this context, Mr O'Shea submitted that the absence of qualifying words in subsection (3)(c) (‘by the local government’) must be treated as deliberate, and important, having regard to s 31(3)(a).  The latter provision contains these words of limitation.  This, it was said, reflected a good reason not to read, by implication, the words ‘by the local government’ (after the word ‘refusal’) into s 31(3)(c). 
  8. [41]
    Finally, Mr O'Shea submitted that the construction of s 31(6)(b) I prefer will result in unworkable situations for affected owners such as the appellants.  He submitted the construction I prefer would necessarily require, at the time of lodging an appeal against a decision of the kind envisaged under s 31(3)(c), a contemporaneous claim for compensation to be made to the local government despite the applicant not knowing the outcome of the appeal.  Mr O'Shea submitted it could easily arise that an applicant’s claim for compensation is assessed, decided and compensation paid prior to the resolution of an appeal, which could result in the approval of a development application.
  9. [42]
    Mr O'Shea’s submissions did not persuade me to prefer an alternative construction to the one I have discussed above.  This is because his submissions proceed on a premise I do not accept.  The submissions assume the decision engaging s 31(3)(c) can include one made by the Court under a different Act (namely the Court Act) and in terms that do not fall within one of the three types of decision identified in subsection (3)(c)(i) to (iii).  This is not an assumption that should be adopted for this case: (1) having regard to the order of 28 October 2022 and s 47(3) of the Court Act; and (2) given there is a lack of statutory context to support a contention that s 31(3)(c) is intended to capture ‘confirmation’ decisions made under the Court Act as distinct from decisions that have the effect of changing or setting aside a decision made by an assessment manager at first instance.
  10. [43]
    To this I would add that, contrary to Mr O'Shea’s submission:
    1. there is good reason why the words ‘by the local government’ are omitted from s 31(3)(c).  It is explained by the fact that the assessment manager for the development application relevant to that section may not be a local government.  It may be the Minister under the Act. It may be a decision of the Court that is treated as if it were a decision of an assessment manager. Mr O'Shea’s submission is, as a consequence, inconsistent with the scheme of the legislation.  I do not therefore place significance on the fact that the words ‘by the local government’ are omitted in s 31(3)(c) of the Act; and
    2. the submission seeking to establish a so-called ‘unworkable’ situation was far from persuasive.  Given the assessment manager here is the same local authority responding to the appellants’ claim for compensation, I do not see how a difficulty would have arisen if the claim for compensation was pursued contemporaneously with the appeal to this Court.  The appellants could have pursued both rights in tandem.
  11. [44]
    Further to (b) above, that a claim for compensation and an appeal against a refusal of a development application relied upon to satisfy s 31(3)(b) of the Act may proceed concurrently is not precluded by statute.  Nor is it unworkable or absurd.  Indeed, it is common in this Court for appeals against notices issued under the Act to be adjourned while a related proceeding or course of action is pursued.  For example, appeals against enforcement notices are often adjourned while an applicant pursues a development application to regularise unlawful development the subject of a notice.   The outcome of one will, understandably, inform the other.  This is not unworkable.  Nor does it, in the ordinary course, cause concerns to arise in terms of the administration of justice.  There is no reason here (established by the evidence) to suggest this case would fall outside the ordinary experience of the Court.
  12. [45]
    For these reasons, I am not satisfied the appellants’ claim for compensation the subject of this appeal was made within the time period prescribed by s 31(6)(b) of the Act.  This has the consequence that Council did not have power to receive the claim for compensation and decide it.  There is no provision in the Act that empowered Council, or its delegate, to receive the claim notwithstanding it was made out of time.  Nor is there a provision of the Act that empowered Council to extend time for the appellants to make their claim for compensation under s 31(6)(b) of the Act.
  13. [46]
    This leads to the conclusion that Council is correct.  This appeal is not a valid one.  The appellants do not have a right of appeal in relation to a decision for a claim for compensation under the Act.

Should the time to make the claim for compensation be extended?

  1. [47]
    The appellants seek an extension of time to make their claim for compensation under s 37 of the Court Act.  This section confers a broad discretion on the Court to excuse non-compliance with a provision of the Court Act, or an enabling Act.  Where there is such a non-compliance, s 37 empowers the Court to deal with the matter in the way it considers appropriate. 
  2. [48]
    Council accepts that non-compliance with s 31(6)(b) of the Act can be excused, and time to make a claim for compensation can be extended, under s 37 of the Court Act.   I accept this is correct given:
    1. the breadth of the power conferred by s 37 of the Court Act;
    2. the absence of any clear words limiting the excusatory power conferred, particularly the absence of any words of limitation relevant to the circumstances of this case; and
    3. the failure to submit the claim for compensation within the time period prescribed by s 31(6)(b) is a non-compliance with an enabling Act.
  3. [49]
    While s 37 of the Court Act can be called upon to grant the relief sought by the appellants, the exercise of that power is however discretionary.  Given the nature of the relief sought, which is akin to an application to extend a limitation period, the following matters, in my view, inform the exercise of the Court’s discretion.
  4. [50]
    First, the onus rests on the appellants to satisfy the Court there are grounds for the extension of time.
  5. [51]
    Second, general statements about the rationale for enacting limitation periods provide context for the exercise of the discretion.  McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 552-553 observed (with footnotes omitted):

“…Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

“The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.”

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

  1. [52]
    Third, when limitation periods are enacted, it has been observed that legislatures have regard to all of the above rationales and, as consequence, should therefore not be seen as an arbitrary cut off point unrelated to the demands of justice or the welfare of society: Brisbane South Regional Authority (Supra), at 553. McHugh J in Brisbane South Regional Health Authority (Supra) at 553 also observed:

“A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society.  It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated… A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.  The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced’…”

  1. [53]
    Fourth, a key question to be considered in an application to extend a limitation period is whether the justice of the case requires leave be given.  The onus of proving what the justice of the case requires falls upon the appellants: Brisbane South Regional Authority (Supra), at 554.
  2. [54]
    Finally, in determining the justice of the case, the Court is entitled to look at every relevant fact and circumstance that does not travel beyond the scope, purpose and subject matter of the enactment authorising the extension of the limitation period.   Relevant facts and circumstances include the various rationales for the enactment of the limitation period involved and potential prejudice to Council.
  3. [55]
    In my view, the underlying rationale of particular interest to this case is that identified as the “Third” by McHugh J.  In simple terms, s 31 of the Act creates a potential liability for a local authority.  That liability expires at the end of the limitation period prescribed in s 31(6).  As McHugh J observed, ‘public institutions’ (which can be taken to include Council) have a significant interest in knowing that they have no liability beyond a definite period.  Any extension therefore to the time to make a claim for compensation under s 31 of the Act results in the imposition of a new liability.  The creation of a new liability is prima facie, prejudicial: Brisbane South Regional Authority (Supra), per Dawson J at 544.  But for an extension of time, the relevant local authority would not be required to deal with, and be potentially liable for, a claim for compensation that would otherwise have been time barred.
  4. [56]
    It was submitted on behalf of the appellants there are several factors that favour granting the extension of time they seek.  The factors can be summarised as follows:
    1. the appellants’ claim for compensation was made within six months of the date of the order refusing their development application;
    2. the delay in commencing the claim was not due to any wilful ignorance of the time limit;
    3. the course adopted by the appellants, that is to delay making the claim while pursuing an appeal to this Court, was the only practical course they could take in the circumstances;
    4. to strictly apply the time limit would be unreasonable; and
    5. there is little doubt, having regard to the reasons for judgment of the Court that the planning change about which there is a claim for compensation is adverse to the appellants’ interest in the land.
  5. [57]
    I accept (a) to the extent the claim for compensation was made within 6 months of the order of 28 October 2022.  I do not however accept that the order of 28 October 2022 ‘refused’ the appellants’ development application.  It confirmed the assessment manager’s decision to refuse the development application.
  6. [58]
    I accept (b) on the limited basis there is no evidence, or suggestion by Council, to the effect that the appellants’ delay was due to wilful ignorance.  It can be observed there was no evidence before the Court about what, if anything, the appellants knew, or were advised, about s 31(6) of the Act.  I will return to this shortly.
  7. [59]
    I do not accept (c).
  8. [60]
    The evidence falls well short of establishing that the only practical course for the appellants to adopt was to not exercise their right under the Act to make a claim for compensation within six months of receiving the relevant decision notice.  Making the claim within 6 months of receiving the notice would have preserved the right to claim compensation under the Act while any Planning Act appeal was heard and determined.  This would have been a prudent course, particularly in circumstances where: (1) the assumption said to be made by the appellants about the interpretation of s 31(6) was not without significant risk given s 47(3) of the Court Act; and (2) there is no provision of the Act or the Court Act that would have precluded the appellants from adopting the alternative course in any event.  When this was drawn to Mr O'Shea’s attention during oral argument, he was unable to explain why the alternative course was impractical.
  9. [61]
    I accept (d) and (e).  As a general proposition, to insist on the strict application of the time limitation here would be unfair to the appellants given the planning scheme amendment the subject of the claim for compensation has, prima facie, a part to play in limiting the development potential of the land.  That it is unfair does not however advance the matter far, if at all.  It is counterbalanced by unfairness to Council and ratepayers for the reason McHugh J identified in Brisbane South Regional Health Authority (Supra) at 553.  The relevant passage appears in the quote at paragraph [51] above.  In short, the observation adapted to apply to the present case is to the effect that it would be equally unfair to make ratepayers liable for compensation under the Act by reinstating a right to claim compensation that has expired.  The level of liability is not insignificant.  It is alleged to be in the order of $3,000,000. 
  10. [62]
    Council resisted an order extending the time for the appellants to bring a claim for compensation under the Act.  It was submitted the extension of time should not be granted taking into account the following circumstances, namely:
    1. the appellants offered no evidence as to why the statutory scheme was not followed;
    2. this is not a case of an unrepresented litigant mis-stepping in relation to legislative requirements or the appellants receiving advice that was inconsistent with the scheme of the Act;
    3. the appellants, who seek an indulgence under s 37 of the Court Act, do not come to the Court with clean hands; and
    4. Council will suffer prejudice in the event time to make the claim for compensation is extended.
  11. [63]
    I accept (a) and (d).  They each militate against making the order sought by the appellants.
  12. [64]
    With respect to (b), the affidavit material relied upon by the appellants does not offer an explanation as to why the claim for compensation was submitted in April 2023.   An explanation was, in my view, required to appreciate whether the failure to submit the claim within 6 months of the relevant decision notice was the product of legal advice, or strategic election or misstep.  The paucity of evidence leaves the Court in a position where impermissible speculation is required to conclude that any of these circumstances are applicable.  That the evidence is inadequate in this respect reflects adversely on the appellants, not Council.
  13. [65]
    An explanation of sorts was sought to be given in written submissions by Mr O'Shea.   Paragraphs 50 and 51 of his written submissions are as follows:

“The Appellants have not “sat on their hands”. They made their application for compensation within the time they, quite reasonably, interpreted as being consistent with the PA.

…

Waiting until after the decision of the Court in the Development Appeal was, in fact, the only practical course available to the Appellants.”

  1. [66]
    The submission asserts the appellants ‘interpreted’ the time period prescribed by s 31(6) of the Act as being within six months of the Court’s decision.  I do not accept this submission.  There is no evidence to establish what, if anything, the appellants assumed, or were advised, about the interpretation of the time limit in s 31(6)(b) of the Act.
  2. [67]
    In my view, the absence of evidence about what, if anything, the appellants knew or understood is a matter of significant import in this application to extend time.  This is because, on the face of the material before the Court, it can be readily inferred the appellants were aware Council was relying upon the amendment to its planning scheme (in relation to the Biodiversity overlay) to refuse their development application.  That is clear from the following parts of the evidence.
  3. [68]
    The planning scheme amendment the subject of the appellants’ claim for compensation was in force (for about three months) prior to the decision to refuse the appellants’ development application.  The material demonstrates that Council drew the existence of the amendment to the appellants’ attention.  The evidence also establishes that Council sought to rely upon the amendment to refuse the appellants’ development application.  So much is clear from the terms of the decision notice communicating the refusal.
  4. [69]
    An examination of the decision notice reveals that a number of reasons were given for refusing the appellants’ development application.  The reasons identified the prospect of adverse and unacceptable impacts on remnant and riparian vegetation, non-juvenile habitat trees and the movement of native fauna.  These factors underpinned a further reason for refusal, namely non-compliance with the very amendment to the Biodiversity overlay relied on to found the appellants’ claim for compensation.
  5. [70]
    That the appellants were aware of the planning scheme amendment, and Council’s willingness to rely upon it to support refusal, is also clear from the appellants’ notice of appeal to this Court.  That notice took issue with the reliance that had been placed upon the amendment to the Biodiversity overlay to refuse the development application.  Paragraph 10 of the notice of appeal is in the following terms:

“10.  Discretionary Matters

The Respondent alleges in its Reasons for Decision that:

Council has amended City Plan 2014 on 29 November 2019.  The proposed development will not comply with the changed provisions of the Biodiversity area overlay code.  The proposal:

(i)Fails to achieve the planning intent of the amendments; and

(ii)Make the planning outcomes sought by the amendments more difficult to achieve.

The Respondent has erred in giving undue weight to the amendment (sic) Biodiversity areas overlay code as:

  1. its discretion in section 45(7) of the Act does not allow it to displace or modify the Biodiversity area overly (sic) code which was in effect when the development application was properly made;
  1. the Court is required to assess the development application against the statutory instruments that applied at the time the development application was properly made; and
  1. in any case, referring to particulars at paragraphs 1, 2, 3 and 4 above, the application does not make the planning outcomes sought by the amendments more difficult to achieve.”
  1. [71]
    The notice of appeal was filed in late February 2020, some 5 months before the expiration of the period provided in s 31(6)(b) of the Act.
  2. [72]
    In circumstances where: (1) the facts set out above were pleaded in the notice of appeal 5 months prior to the expiration of s 31(6)(b) of the Act; and (2) the facts pleaded in the notice of appeal are relevant to the appellants’ claim for compensation; an explanation as to why a claim for compensation was not made within time was, in my view, required to properly examine the justice of the case.  The absence of that evidence falls at the feet of the appellants, who bear the onus in an application to extend the limitation period prescribed by s 31(6)(b) of the Act.
  3. [73]
    With respect to (c) above, the point is underpinned by two contentions.  First, it is said the appellants have prolonged the dispute in relation to the development of the land.  Second, it was submitted the appellants have taken recent action to clear vegetation on the land, consistent with an intent to remove the constraint forming the basis for the Court’s refusal of the development application and the planning scheme amendment relied upon to found the claim for compensation. 
  4. [74]
    I do not regard either consideration as assisting the Court, let alone militating for or against the exercise of the discretion.  This is because: (1) the delay to which the Council points, while no doubt frustrating, is not, on the evidence, undue or suggestive of ‘unclean hands’; and (2) it was not established that the clearing work undertaken on the land was unlawful and, in addition, was carried out to secure an advantage relevant to the claim for compensation, or the timing of that claim.
  5. [75]
    Against the background of the matters traversed above, I was not persuaded the appellants demonstrated the justice of the case calls for an extension to the limitation period prescribed by s 31(6)(b) of the Act.  Adopting Mr O'Shea’s submission, this may seem unfair but:
    1. the evidence establishes that the appellants were aware of the planning scheme amendment underpinning their claim for compensation well before the time for making a claim for compensation expired in August 2020;
    2. the evidence establishes that the appellants were aware of Council’s reliance upon the planning scheme amendment to refuse their development application at least by late February 2020, some 5 months before the time for making a claim for compensation expired; and
    3. the right to make a claim for compensation, assuming one arose, could have been exercised within time, but the evidence falls well short of explaining why the appellants elected not to do so.
  6. [76]
    The time to commence the claim for compensation will not be extended.

Disposition of the appeal

  1. [77]
    While I have a number of misgivings about the two remaining points advanced by Council to resist the appellants’ claim for compensation, it is unnecessary to dwell on these matters.  It is sufficient to say that, for the reasons given above, the appellants do not have a right of appeal under the Act.  This appeal, which assumes there is such a right, is not a valid one and should be struck out.
  2. [78]
    The appeal will be listed for review on 15 March 2024 to hear from the parties about:
    1. the orders necessary to give effect to these reasons for judgment; and
    2. the costs reserved for the adjournment granted on 20 November 2023.
Close

Editorial Notes

  • Published Case Name:

    Roseingrave & Anor v Brisbane City Council

  • Shortened Case Name:

    Roseingrave v Brisbane City Council

  • MNC:

    [2024] QPEC 7

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    12 Mar 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Roseingrave v Brisbane City Council (No. 2) [2022] QPEC 43
2 citations
Jump To
Cite 1 - [2022] QPEC 43
Cite 2 - [2022] QPEC 43

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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