Application – leave to appeal – whether time for
filing notice of appeal expired – whether if time for filing
notice of appeal had expired leave ought be granted – whether
reasonable explanation for delay – whether applicant had
reasonable prospects of success in the substantive appeal if leave
granted – whether fairness dictated that leave be granted
Facts: This was an application for leave to
appeal against Council's decision to approve a development
proposal advanced by Trinity Green Development Pty Ltd
(Trinity) where the time for filing a notice of
appeal under the Sustainable Planning Act 2009 (Qld)
(SPA) had expired.
Following the end of the appeal period, the Applicant filed a
document purporting to be a notice of appeal which stated the
grounds of appeal were: "we are requesting an extension to
the appeal lodgement deadline to have more time to organise the
appeal properly." The Applicant subsequently filed two
documents described as applications in pending proceedings which
set out a number of grounds upon which the Applicant contended that
the proposal should be overturned, including on the basis of
preservation of open space and protection of koala habitat
The issues for the Court's consideration were whether the
purported notice of appeal was filed out of time, and if it was,
whether there were sufficient reasons, despite the delay, to grant
the Applicant leave to appeal.
The Applicant led evidence that he had acted on advice of the
Court registry in filing his material. The Applicant argued that
because of the alleged representations made by the Court registry,
he had complied with the SPA and, if he had not, any non-compliance
should be excused because of the advice given.
Trinity opposed the application on the basis that the grounds of
appeal disclosed no reasonable cause of action.
No application for costs was made by Council. Trinity submitted
that costs should follow the event.
Decision: The Court held, in dismissing the
The Applicant had not complied with the relevant provisions of
the SPA dealing with the filing of a proper notice of appear
The Court's discretion in deciding whether or not to extend
time was a wide one and one that ought not be fettered by reference
to rigid criteria such as the need for exceptional
Even without subjecting the Applicant's material to any
substantive scrutiny, the Applicant did not reveal a case (or
potential case) with any realistic prospects of the success. It was
not a case where the interests of justice or fairness warranted an
extension of time to appeal.
Trinity was entitled to a favourable costs order, but such
costs should be limited to no more than $750.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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