Late for a very important date: the consequence of a missed appeal period

While most of us are scratching our heads about how it could be that we are already near the end of March, the seemingly fleeting passage of time has more severe consequences for some than for others.

In a recent decision handed down on 2 February 2022, the Planning and Environment Court (P&E Court) refused an application seeking an extension of time to commence an appeal and struck out the appeal itself against the giving of an enforcement notice.

The matter was: Christopher Lee Ruthenberg & Anor v Scenic Rim Regional Council [2022] QPEC 5.

Background

Findings

In considering the application for the extension of time, the P&E Court had to consider whether there were “sufficient grounds” for the extension. The P&E Court relevantly noted that there is a wide discretion in considering whether an extension should be granted, which would include consideration of, among other things, the following matters:

• Explanation for the delay (which should be given to the Court “as fulsomely as could possibly be done”[1])
• Prejudice to the Respondent
• Public considerations
• The merits of the appeal
• Consideration of fairness as between the applicants and the other parties
• Any other discretionary considerations

In declining to grant the relief sought and striking out the appeal itself, the P&E Court noted the following:

• Despite being aware of the timeframe for the filing of the notice of appeal, one of the Appellants instead sought political assistance from his local state member and then his local councillor, with the P&E Court stating it was, “…highly inappropriate to ignore the lawful processes for administering the planning controls of the local government and seek political intervention as a means of avoiding compliance with the law.”[2]
• There was significant delay between the Appellants contacting their solicitors on 19 April 2021 and the Notice of Appeal being filed on 18 May 2021. The Appellants’ solicitors deposed that it was necessary to consider various documentation, but the Court found that this explanation did not justify the delay in filing.
• While it was not apparent that granting the extension sought would prejudice the Respondent (Council), the P&E Court considered that there were significant public interest issues as the extension may prejudice the residents in the vicinity of the subject land, given the enforcement notice had been given following complaints being received and the use in question was likely causing a noise and odour nuisance to the surrounding residents.
• As to the merits of the appeal, the P&E Court considered the grounds of appeal to be unmeritorious and commented that the grounds did not assert that the use being carried out on the subject land was lawful, noting, “…an unmeritorious appeal merely perpetuates the ongoing amenity impacts of the alleged unlawful use”[3].
• Regarding the fairness consideration, the Appellants submitted that it would be unfair not to allow this appeal to proceed in circumstances where the same issues would be ventilated in another appeal commenced in response to a similar enforcement notice issued over the land. The P&E Court did not find this compelling and noted that there were substantial differences between the two enforcement notices.

Key Takeaways

In the unfortunate circumstance that an appeal against an enforcement notice needs to be commenced after the appeal period, any supporting material for the extension sought needs to comprehensively address:

1. the explanation of the delay in commencing the proceedings;
2. the “public interest” considerations around seeking the extension sought, for example any impacts of the stay of the enforcement notice on surrounding residents;
3. the merits of the appeal;
4. prejudice to the other party (i.e. the local government);
5. fairness; and
6. any other relevant consideration.

Thynne + Macartney’s recommendations for avoiding similar situations

It is a timely reminder of the importance of complying with timeframes and deadlines set by the Courts.

If you receive an Enforcement Notice or similar order, please contact your lawyers immediately so you can comply with relevant deadlines.

[1] Driesen v Gold Coast City Council (2015) 207 LGERA 425 at 436 as quoted in the Judgment.

[2] Judgment at para [15].

[3] Judgment at para [18]

Authors:

About Tim

Recognised as a finalist at Lawyers’ Weekly’s 2021 Partner of the Year – Planning and Environment, Tim leads Thynne + Macartney’s team and has over 20 years experience in enforcement and prosecution proceedings for developments and environmental offences. His objective is to guide clients through the intricacies of planning and environment law to create the best commercial result with minimal delay or obstruction.

About Holly

Holly is a lawyer in the Planning + Environment group at Thynne + Macartney. She assists clients to navigate the complexities of planning and environment law at all stages of their projects. Working closely with Tim Quirk who leads the Planning + Environment group, Holly advises developers and local governments. Holly is recognised by Doyle’s Guide to Leading Lawyers as a 2022 Rising Star for Planning & Environment Law in Queensland.