The case of Roseingrave & Anor v Brisbane City Council [2024] QPEC 7 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to refuse an application for compensation, made under section 31 of the Planning Act 2016 (Qld) (Act), in relation to an alleged "adverse planning change" affecting the Appellants' land located in Everton Park (Decision).

The Court considered whether:

• the Appellants' compensation application was made out-of-time, having regard to the relevant statutory time limit; and

• the Court could, and should, exercise its discretion under section 37 of the Planning and Environment Court Act 2016 (Qld) (Court Act) to excuse the non-compliance with the statutory time limit for making the compensation application such that the appeal could continue.

The Court found that the compensation application was made out-of-time and that the Court's discretion should not be exercised to excuse this non-compliance because a decision that effectively extended the time limit for making a compensation application would prejudice the Council and there was insufficient evidence before the Court to justify the exercise of discretion.

Section 31 of the Act allows an "affected owner" to apply for compensation arising from an "adverse planning change" provided that particular requirements are met.

The requirements relevant to this appeal are set out in subsection 31(3) as follows:

"(3)    An affected owner may claim compensation in relation to development that is or becomes assessable development after the adverse planning change has effect, if—

(a)    the local government refuses a superseded planning scheme request in relation to the development; and

(b)    a development application has been made for the development; and

(c)    the development application is—

     (i)    refused; or

    (ii)    approved with development conditions; or

    (iii)    approved in part, with or without development conditions."

The Council refused a superseded planning scheme request made by the Appellants and a development application was subsequently made to the Council. The Council refused the development application and gave notice of this decision in February 2020.

The Appellants appealed the Council's decision to refuse the development application, however the appeal was dismissed by the Court on 28 October 2022 (DA Appeal). The decision to dismiss the DA Appeal is considered in our February 2023 article.

The Appellants made the compensation application on 6 April 2023.

Section 31(6) of the Act requires that a compensation application must be made within six months after the "affected owner" is given notice of the decision under section 31(3)(c) of the Act.

The Appellants' submitted that the six month time limit commenced following the conclusion of the DA Appeal on 28 October 2022 and therefore, the compensation application was made within time (at [13]).

The Council submitted that the six month time limit commenced once the Council gave its decision notice refusing the development application to the Appellants in February 2020 and therefore, the compensation application was made out-of-time (at [15]).

The Court accepted the Council's submission and found that the Court's previous Order to dismiss the DA Appeal could not constitute a "notice of the decision" for the purpose of section 31(6) for the following reasons:

• An order to dismiss an appeal is not, in and of itself, a refusal as required by section 31(3)(c)(i) of the Act (at [17]).

• There are instances where a decision made by the Court is treated as a decision made by an assessment manager, however a decision to dismiss an appeal is explicitly excluded from this treatment by section 47(3) of the Court Act (see [18] and [34]).

• The Order which confirms the Council's decision (by dismissing the DA Appeal) can be distinguished from an Order which sets aside the Council's decision and replaces it with a new decision (at [26]).

The Court held that the compensation application was made out-of-time because it was not made within six months after the Appellants received notice of the Council's decision to refuse the development application. Consequently, the appeal was not valid as the Council did not have the power to receive and decide the compensation application which was out-of-time.

The Appellants sought an extension to the time limit prescribed by section 31(6) of the Act by relying on the broad discretionary power to excuse non-compliance with a provision of the Court Act, or an enabling Act, conferred to the Court by section 37 of the Court Act.

Whilst the Council accepted that section 37 of the Court Act could be relied upon to extend the time in which the compensation application could be made, it opposed the relief sought by the Appellants.

The Court considered matters which weighed for and against extending the time limit for the compensation application and decided not to exercise its discretion under section 37 of the Court Act for the following key reasons:

• Extending the time for a person to claim compensation from the Council would prejudice the Council and impose a new liability, which is against the public interest in local governments having certainty in relation to their liabilities and spending (see [55] and [61]).

• It would be unfair to make ratepayers liable for compensation by re-instating an expired claim (at [61]).

• It was for the Appellants to convince the Court that the relief they sought should be granted, however no evidence was put before the Court explaining why the Appellants did not make a compensation application within six months of receiving notice of the Council's decision to refuse the development application in circumstances where the Appellants had knowledge of the factual circumstances comprising the basis of the compensation application within the relevant time period (see [64] to [72]).

The Court held that the Appellants did not have a right of appeal and that the appeal should be struck out.

The Court's decision in this case is a timely reminder of the following:

• An application for an extension of time under section 37 of the Court Act is not granted as of right.

• Applicants need to understand the statutory time limits operating in respect of their applications in order to exercise their statutory rights in time.

• Litigants seeking to extend a statutory time limit need to be prepared to address any prejudice to another party and present evidence, including to explain any delay in commencing proceedings, in favour of the Court exercising its discretion.