In Supreme Renovators Pty Ltd v Logan City Council  QPEC 63 the applicant attempted to convince the Planning and Environment Court (Court) that there were “sufficient grounds” to extend the timeframe for filing an appeal out of time. The applicant missed its appeal period by approximately two months and one week.
The applicant sought two orders from the Court:
There are a number of decisions that have considered the exercise of discretion to extend time for filing a notice of appeal. In this case, the Court was referred to the decision of Kadhem v Trinity Green Development Pty Ltd  QPELR 720. In Kadhen, it was held that typically these types of cases require consideration of the following matters:
The period of delay was broken down into two parts by the Court:
In support of the first period of delay, it was argued that the:
In support of the second period of delay, it was argued that:
In this case, the Court did not accept that the applicant had provided an adequate explanation for the delay in filing the appeal based on the evidence before it. His Honour Judge Williamson QC DCJ held at para  that the explanation was “… 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.” While the absence of an adequate explanation was not fatal to the request, the Court observed that in the circumstances it attracted significant weight.
The Court further noted that appeal periods are not to be treated as guidelines, or as aspirational, and should not be approached as if an extension of time will be granted where a respondent would suffer no prejudice.
Ultimately, the Court refused to grant an extension of time to file the appeal meaning that the applicant has forever lost the opportunity to fight the Council’s refusal of its Development Application. In saying that, the Court’s refusal to allow an extension of time does not stop the applicant from lodging a fresh application for a similar development over the land. However, this creates a raft of difficulties for the applicant, including costs, delay and in this particular case demonstrating a need for another service station in the catchment.
This decision is a timely reminder of the importance of ensuring appeal timeframes are closely monitored by either you and / or your consultants. If you find yourself in the unfortunate situation where an appeal period has been missed, immediate action is required and there must be a very compelling reason as to why this was missed, supported by all necessary evidence before the Court will allow an extension of time.
Stafford Hopewell, Partner
Sarah Day, Associate