Queensland Court of Appeal clarifies appeal period for Planning and Environment Court decisions

A recent decision of the Queensland Court of Appeal has significant implications for future appeals from the Queensland Planning and Environment Court.

In Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41 (King of Gifts), the Court of Appeal considered the important issue of whether an application for leave to appeal to the Court of Appeal against a decision of the Planning and Environment Court (P&E Court) should be made at the time the P&E Court delivers its reasons, or at a later time when the P&E Court makes a final judgment. 

The issue is important because, in some cases, there may be a number of months between reasons being delivered and a judgment being made. In the P&E Court, it is common (depending on the type of proceeding and the outcome) that, after reasons are delivered, the parties then need further time to resolve details of the final Judgment. For example, if the outcome of a P&E Court decision is that a development approval is to be given, the final judgment may need to include updated conditions and plans.

Background to the case

The King of Gifts case concerned an appeal by Redland City Council (Council) to the Court of Appeal against a decision of the P&E Court to allow a developer’s appeal against Council’s decision to refuse a development application for a service station.

While the substantive background to the case is not relevant for present purposes, the applicable series of events was as follows:

• On 6 November 2017, the P&E Court delivered its reasons, which included an order the appeal ‘will, in due course, be allowed’, and adjourned the case to allow the parties to formulate conditions to be included in a final judgment.
  
  
• On 18 June 2018 (ie seven months later), the P&E Court made its final judgment, allowing the developer’s appeal subject to the formulated conditions.
  
  
• On 30 July 2018, Council filed an application to the Court of Appeal for leave to appeal against the P&E Court’s judgment.

The Court of Appeal

In the Court of Appeal, one of the arguments raised by the developer was that Council’s application was not made within the required statutory timeframes.

Under section 64(1) of the Planning and Environment Court Act 2016 (Qld), a party is generally required to apply for leave to appeal to the Court of Appeal against a P&E Court decision ‘within 30 business days after receiving the decision’.

Given this, the developer argued that the relevant decision was made on 6 November 2017 (when the P&E Court delivered its reasons), and so Council should have commenced its appeal to the Court of Appeal within 30 business days of that date. The developer further argued that appealing the final orders made on 18 June 2018 resulted in a prejudicial delay to its development.

Council, on the other hand, argued that the reasons delivered on 6 November 2017 were not an appellable decision, since the P&E Court had deliberately not made a judgment finalising the appeal at that time. 

The Court of Appeal ultimately decided that Council’s appeal was not commenced out of time, though with differing reasons. Consistent with Council’s position, Phillipides JA held that the only appellable decision was the order made on 18 June 2018, and that the “findings, reasons and conclusions delivered on 6 November 2017 was not a “decision”, but rather merely supported an order for an adjournment”.[1] In contrast, Fraser and McMurdo JJA held that the 6 November 2017 reasons were an appellable decision – but that the order made on 18 June 2018 was also appellable, meaning that Council was entitled to elect to appeal against the 2018 order, rather than the 2017 reasons.[2] 

Key implications 

The Court of Appeal’s decision potentially has significant implications for future appeals. The decision means that a party wishing to appeal to the Court of Appeal against a P&E Court decision can wait until a final judgment is made, rather than having to appeal within 30 business days of the P&E Court giving its reasons. As noted above, in King of Gifts, the P&E Court’s final judgment was not made until seven months after the reasons were delivered.

For some parties, the outcome will be welcome, since it effectively provides an extended appeal period – avoiding the need to promptly progress an appeal to the Court of Appeal after the P&E Court delivers its reasons.

However, the outcome in King of Gifts is likely to have adverse implications for developers. It means that, even if a developer has clearly (based on the P&E Court’s reasons) ‘won’ a P&E Court appeal, they will not know whether an appeal may be brought to the Court of Appeal (resulting in further delay) until after the P&E Court’s final judgment is made – potentially many months later. It is reasonable to assume that this may prevent some developers from being able to progress preparations (eg mobilising contractors, and preparing marketing material) until after the judgment is made.