Raunik Design Group & Ors v Gold Coast City Council & Ors [2009] QPEC 55

[2] Appeal No. 3429/08 challenges six of the conditions which the Council seeks to impose by its decision to approve the Development Application (the developer's appeal). It does not challenge the underlying approval that has been given by Council. Appeal No. 340/09 seeks to challenge the underlying approval that has been given by Council (The objector's appeal). On 17 April 2009, His Honour Judge Wilson SC made orders in relation to issues for determination in the subject applications. Issues identified were:

(a) Whether or not there should be an extension of time for the bringing of Appeal No. 340 of 2009;

(b) The proper identity of the appellants in Appeal No. 340 of 2009; and

(c) The proper identity of any co-respondents by election in Appeal No. 3429 of 2008.

[3] Those identified preliminary issues principally turn upon whether a "properly made submission" was made, and if so, by whom. If no "properly made submission" was made a further question is raised in these applications as to the applicability of s4.1.5A of the Integrated Planning Act 1997 (IPA), and whether the operation of that section can excuse deficiencies so as to secure rights for the objectors to elect to become co-respondents in the developer's appeal or to commence the opponent's appeal.

[4] Although the co-respondent issue was raised in this hearing, the matter practically resolved itself into a question concerning whether a properly made submission was made on behalf of any person and whether there should be an exercise of the court's discretion then to enlarge or extend the time for the lodging of an appeal.

[5] An Appeal 340/09 was lodged on behalf of the objectors on 5 February 2009. These last issues were central arguments advanced by all parties.

[6] These applications are brought by the objectors who seek to regularise opposition to the development application lodged by Raunik Design Group in April 2008. The objectors apart from Grummitt Planning Pty Ltd (Grummitt) who were engaged by the other objectors are all residents of a block of units adjacent to the development site on land at 231 Golden Four Drive, Bilinga. Those objectors are members of the Body Corporate Arena Durada (the Body Corporate).

[7] In July 2008 and in the public notification period for the development application Grummitt lodged a submission in respect of that Development Application which submission opposed the Development Application. The Development Application was however approved by Council in November 2008. The developers lodged an Appeal 3429/08 in respect of that approval but only in relation to conditions imposed by the Council. In December 2008, the individual unit owners and objectors referred to above attempted to elect to join Appeal No. 3429 of 2008. On 30 January 2009, the legal representatives for the developers wrote to the objector's solicitors to advise that in their view the unit owners (the objectors) were not entitled to elect to join that appeal. Subsequently, on 2 February 2009, the objector's solicitors were advised by Grummitt Planning that Grummitt Planning had actually been provided with the required notice of approval on 16 December 2008 and that notice was forwarded to the objectors' solicitors on that day.

[8] On 5 February 2009, Grummitt and the unit owners lodged an appeal in which all parties including Grummitt were named as appellants. This is Appeal 340 of 2009. The appeal was lodged outside the 20 business days allowed by IPA for the making of such an appeal which should have been lodged in accordance with IPA on 21 January 2009. It was lodged 10 business days late on 5 February 2009. The only explanation for the failure to lodge on time appears on the evidence to be one of oversight and/or negligence.

[9] The subject applications were filed on 18 February 2009. At that stage neither the respondent, Council, nor the developers had taken any formal step in the proceedings to progress Appeal 3429 of 2008.

[10] It is convenient to set out the steps and the order in which events occurred by reference to the following Chronology:

Date of Development Application naming Raunik Design Group as the Applicant

Public notification period for the Development Application commences

Mr John Darragh contacts Grummitt Planning to discuss engagement of Grummitt Planning to prepare a submission opposing the Development Application

Mr John Darragh, care of the Body Corporate, engages Grummitt Planning to prepare a submission opposing the Development Application

Grummitt Planning lodges the Grummitt Submission with Council

The public notification period for the Development Application ends

A letter of objection sent from the Unit Owners to Council

The Objectors' solicitors write to Grummitt Planning to note that the Unit Owners intend to appeal against the Approval and to request that Grummitt Planning immediately advise of any correspondence or contact received from Council in relation to the development application

Grummitt Planning is served with the Notice of Appeal in Appeal 3429 of 2008

The Unit Owners elect to join the Appeal 3429 of 2008

Council files its Entry of Appearance in Appeal 3429 of 2008

The Objector's solicitors are served with Council's Entry of Appearance in Appeal 3429 of 2008.

The Objector's solicitors contacts the Council's solicitors to enquire about the progress of Appeal 3429 of 2008 (on the mistaken belief that notice of the Approval would be served on the Objectors once Appeal 3429 of 2008 was completed)

The Objectors' solicitors receive correspondence from the Developers solicitors questioning entitlement of the Unit Owners to be co-respondents was completed

The Objectors' solicitors write to Grummitt Planning to query the identification of the submitters and the service of notice of the Approval

Notice of Appeal 340 of 2009 is given to the relevant parties

[11] A "submitter" in relation to a development application is defined in Schedule 10 of IPA as "a person who makes a properly made submission about the application." The definition of "properly made submission" in Schedule 10 of IPA relevantly requires that a submission:

(a) is in writing and is signed by each person who made the submission; and

(b) is received, if it is about a development application - during the notification period;

(c) states the name and address of each person who made the submissions;

(d) states the grounds of submission and the facts and circumstances relied upon to support the grounds; and

[12] Exhibit 2 in these proceedings is a document from Grummitt Planning Pty Ltd dated 17 July 2008 to the Chief Executive Officer of Gold Coast City Council.

[13] In all respects it conforms to the definition of a properly made submission. The argument however focuses upon the fact that Grummitt wrote in these terms to the Council in that document:

"We write on behalf of our client in response to the public notification of subject application on the above site seeking submission to be lodged with Council by close of business on 17 July 2008" (Emphasis added)

[14] The argument advanced by both developer and Council against the applicants is that the submission was not "properly made" because it was made on behalf of other persons, that is, the person making the submission did not make that submission in its own right (Grummitt) or even in its own right together with a group of other interested objectors. The third party nature of the submission rendered it not "made" by the real objectors.

[15] The definition of "submitter" and "properly made submission" in Schedule 10 does not circumscribe the class of person who may make a submission nor does the IPA anywhere require that there be some type of interest demonstrated in the Development Application for that person to be regarded properly as a submitter and for rights including appeal rights to accrue in respect of a properly made submission.

[16] On the face of the Grummitt objection all prerequisites for a properly made submission have been fulfilled. Whether Grummitt was acting on behalf of others is in my view irrelevant to a consideration whether the submission was "properly made". In my view the document of 17 July 2008 operates as a properly made submission by Grummitt.[1]

[17] The "client" referred to in the Grummitt objection was on the evidence John William Darrah and perhaps the other named appellants in Appeal 340 of 2009. Although the matter was not seriously pursued, it follows from what I have said that none of the other named persons who are appellants in that appeal apart from Grummitt made a "properly made submission" in accordance with the Schedule 10 definition. Those persons therefore have no rights in respect of Appeal 3429 of 2008 and Appeal 340 of 2009.

[18] Section 4.1.55 of IPA relevantly provides:

"4.1.55 Court may allow longer period to take an action

In this part, if an action must be taken within a specified time, the court may allow a longer time to take the action if the court is satisfied there are sufficient grounds for the extension."

[19] Both developer and Council submit that there is no proper basis for extending time.

[20] The prima facie rule is of course proceedings commenced outside a prescribed time limit should not be entertained. It is a pre-condition to the exercise of discretion that such an application for extension of time demonstrate an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.[2]

[21] There are a number of features to be weighed in considering the exercise of discretion in the instant case. They may be summarised as follows:

(i) whether there is an acceptable explanation for the delay;

(ii) whether it is fair and equitable in the circumstances to extend time;

(iii) whether other parties would suffer any prejudice by an extension being granted;

(iv) whether there is other action by the applicant for relief which is relevant.

(v) the merits of the substantive appeal and the extent of the delay.

[22] Time limits should not lightly be ignored. The regime in IPA which imposes time limits through the process from Development Application to any eventual hearing which contests the proprietary of that application were put in place for good reason. At the heart of that regime is the notion that there should be certainty and finality to intermediate steps and final processes for all parties concerned.

[23] Thus, in this case whether prejudice if any or to what extent has been suffered by a party (relevantly here the developer or Council) is a significant factor but also one of the numerous factors to which I have referred.

[24] There is nothing to suggest that the appellant's Appeal 340/09 is not meritorious or is made in bad faith.

[25] Should the extension of time be granted, the developer puts the argument that it is disadvantaged and prejudiced by the fact that it would then have to fight an appeal on merits instead of dealing with its own more limited appeal in relation to conditions imposed by Council. That, however, in my view, is merely a function of the right of a submitter with appropriate standing to contest the development in its entirety should that submitter wish to do so. It is uncontroversial that no steps have been taken by the developer and on the evidence the developer knew in a general way that there was objection to the development. Although I mention this I do not regard it as a factor to take into account in exercising discretion in favour of the applicants.

[26] The delay on the other hand is one which is unexplained except for the fact that through oversight or negligence the appeal was not instituted until 5 February 2009. The plain facts are however that the appeal should have been instituted by 21 January 2009 demonstrating a delay in filing of 10 business days. The length of the delay is clearly quite short, and the objectors have subsequently acted promptly to bring the applications in an attempt to regularise proceedings. Whatever prejudice may have been suffered by the developer and/or Council, in my opinion, should in the overall circumstances be regarded as minor. On balance having regard to all the factors to which I have referred I will extend time within which to lodge the Notice of Appeal to 5 February 2009.

[27] I will hear further submissions in relation to the balance of the matters and directions concerning Appeal 340 of 2009.

[1] There is no controversy that Grummitt is in fact an incorporated body, Grummitt Planning Pty Ltd, and may be regarded as a person for the purposes of the definition in its Schedule 10.

[2] See Mitchell v Brisbane City Council & Anor [2006] QPEC 86; [2006] QPELR 798; Lindsay v Rose (Registrar of the Immigration Review Tribunal) (1996) 44 ALD 570 at 578.