You’re Out of Time … Start Again

In Supreme Renovators Pty Ltd v Logan City Council [2019] 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:

• leave to file a notice of appeal against Logan City Council’s (Council) refusal of its development application seeking approval for a service station and food and drink outlet (Development Application); and
• an extension of time under section 32(2) of the Planning and Environment Court Act 2016 to file a draft notice of appeal, which was included as an exhibit to the applicant’s evidence to support the relief sought 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 [2014] QPELR 720.  In Kadhen, it was held that typically these types of cases require consideration of the following matters:

• explanation for delay;
• prejudice to the respondents;
• public considerations;
• the merits of the appeal; and
• consideration of fairness as between the applicant and the other parties.

The period of delay was broken down into two parts by the Court:

• the first period of delay was where the applicant was aware he had a right of appeal against Council’s decision but was unaware of any prescribed period; and
• the second period of delay was from the time the applicant became aware that the appeal period had expired and the filing of the proceedings in the Planning and Environment Court seeking an extension of time for filing a notice of appeal against the Council’s refusal.

In support of the first period of delay, it was argued that the:

• applicant was not legally represented; and
• decision notice did not state that the appeal right was constrained by an appeal period.

In support of the second period of delay, it was argued that:

• the applicant had instructed a solicitor to reach out to Counsel to assist with settling the application the subject of the Court proceedings and the draft notice of appeal;
• since instructing a solicitor and Counsel the applicant had been in regular contact with both; and
• the applicant had done everything he could since retaining a solicitor to progress the matter as expeditiously as possible.

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 [16] 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.

Conclusion

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.

Authored by:

Stafford Hopewell, Partner
Sarah Day, Associate