ABC Developmental Learning Centres Pty Ltd v Gold Coast City Council

[2006] QPEC 56

[2006] QPEC 056

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Appeal No BD3067 of 2005

ABC DEVELOPMENTAL LEARNING  Appellant
CENTRES PTY LTD
(ACN 010 788 502)

and

GOLD COAST CITY COUNCIL  Respondent

and

SUNLAND GROUP PTY LTD  Co-Respondent

and

STATE OF QUEENSLAND                 Co-Respondent by Election

BRISBANE

..DATE 07/04/2006

ORDER

CATCHWORDS:  Submitter appeal by commercial rival against development approval for a childcare centre - printout of email to appellant's lawyer from applicant's - applicant not represented - lawyer suggests the applicant is no longer interested - Court declines to allow appeal and order that the development application be refused on a direction's hearing, given the possibility that there may be others interested in the approval and/or application

HIS HONOUR:  This is a directions hearing in a submitter appeal by a commercial competitor against the Council's granting development approval for a childcare centre.  The co-respondent developer has not appeared today when called; that was in line with expectations of the other parties, including the State of Queensland, which has a concern being handled by the Main Roads authorities.

This is borne out by Exhibit 1, which is a printout of an
e-mail sent three days ago to Mr Twigg (who is representing the appellant) and copied to the representatives of the other parties.  The e-mail says the author, Steve Amundsen, a partner of Minter Ellison, Gold Coast, has been instructed by his client that it has no continuing interest in the land the subject matter of the appeal, accordingly no interest in the appeal.  The e-mail foreshadowed that there would be no appearance at today's mention.

In the circumstances, the Court is asked to make an order in terms of the draft handed up to following effect:

"(1)The appeal be allowed on the limited ground that the co-respondent no longer wishes to proceed with the development application the subject of the appeal.

(2)The development application be refused.

(3)There be no order as to costs."

I have some misgivings about making the order today in the circumstances, given that recent matters in the Court and, according to Mr Litster who helpfully came forward from the back of the Court as amicus, in the Court of Appeal indicate there are prospects of the development approval which exists, and indeed the underlying development application, being availed of by persons or entities other than the co-respondent developer Sunland Group Pty Ltd.  The favoured class may include the owner of the land at the time when the development application was made - the Court was made from the Bar table this was not the co-respondent - or a subsequent purchaser.

The regime established by the Integrated Planning Act 1997 in respect of just who may be heard by the Court as appellant, respondent or co-respondent is complex - and I form no view whatever as to how they would apply here. I form no view as to the appropriateness in the end of the draft order handed up. However, I am not persuaded that the Court ought to act here and now on the basis of a printout of an e-mail.

I make it clear that I am not suggesting there is anything untoward about Exhibit 1 or anything to do with it; it is just a case of the Court having assurance that there is not anywhere in the picture here someone who may have a legitimate expectation of being able to pursue the interest which Sunland Group Pty Ltd  is apparently no longer prepared to pursue.

The ordinary practice of the Court is that, even in respect of that last proposition, the Court would have felt more comfortable on the basis of representation of the
co-respondent or perhaps a direct communication to the Court.  It seems the likelihood is that there is no one interested in pursuing the notion of developing a childcare centre on the site, but the appropriate thing is to allow the parties additional time to assemble evidence or other material to allay the Court's concerns. 

So, the matter will be adjourned to the 19th of April 2006.

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