Sustainable Planning Act 2009 – s497 – extension
of time for developers appeal – whether mistaken
discontinuance of a previous appeal led to extension of all appeal
Sustainable Planning Act 2009, s497 Planning and Environment Court Rules 2010, r 15
Facts: This was an application by a developer
for an extension of time to commence an appeal under s 497 of the
Sustainable Planning Act 2009.
The Appellant lodged a development application on 13 October
2010. The development application was made to
"regularise" the Appellant's use of its premises,
which had been the subject of previous enforcement proceedings
(Brisbane City Council v Bowman & Ors  QPEC
078). The application was refused by Council, by decision notice
issued on 29 August 2012.
On 20 October 2012, the Appellant filed a Notice of Appeal out
of time. On 14 February 2013, a Notice of Discontinuance was
mistakenly filed, discontinuing the appeal. On 26 April 2013, a
second Notice of Appeal was filed in an effort to remedy the error.
The Appellant's solicitor, acting as a favour to the Appellant,
was inexperienced in the planning jurisdiction and admitted fault
for the deficiencies.
The Appellant argued that:
the filing of the Notice of Discontinuance was a mistake which
should not preclude it from obtaining Court approval of the
the solicitor who undertook the work was without experience in
the planning jurisdiction, leading to inadequacies in procedural
requirements and the inadvertent discontinuance.
Council argued that the Appellant's entire conduct of the
proceedings had been so dilatory and generally non-compliant that
the Court ought not exercise any discretion in allowing the appeal
The Tenth Co-Respondent (a submitter and commercial competitor)
argued that the appeal could not be brought at all because the
withdrawal of the earlier appeals had exhausted the Appellant's
Decision: The Court held, in granting an
extension of time:
Dismissing the application would compel a fresh development
application resulting in significant expense and essentially
repeated proceedings. While this would provide a salutary
demonstration of need to comply with procedural requirements, it
was essentially a costly punishment for all parties.
There was a genuine mistake leading to the decision to
discontinue the first appeal.
An Appellant who discontinued on determining a Notice of Appeal
was inappropriate should be able to lodge a new appeal upon paying
the applicable filing fee, within the prescribed time.
Leave should be granted to bring the second appeal late in time
under s 497 Sustainable Planning Act 2009.
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