Sustainable Planning Act 2009 – s497 – extension of time for developers appeal – whether mistaken discontinuance of a previous appeal led to extension of all appeal rights

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 [2012] 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:

  1. the filing of the Notice of Discontinuance was a mistake which should not preclude it from obtaining Court approval of the development application;
  2. 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 to proceed.

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 appeal rights.

Decision: The Court held, in granting an extension of time:

  1. 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.
  2. There was a genuine mistake leading to the decision to discontinue the first appeal.
  3. 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.
  4. Leave should be granted to bring the second appeal late in time under s 497 Sustainable Planning Act 2009.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.