AHC Ltd v Gold Coast City Council

[2009] QPEC 91

[2009] QPEC 91

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Application No 1828 of 2009

AHC LIMITED	Applicant
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 11/09/2009

ORDER

CATCHWORDS

Court declines to order Council to provide particulars of deficiencies in a road for which it withheld a certificate of practical completion in reliance on its state some years after construction - it was for the developer to establish compliance with relevant standards in the first instance, rather than for the Council to identify and nominate deficiencies in a binding way

HIS HONOUR:  I'll initial the other order Mr Knox handed up and make an order in terms of that initialled draft.

The main difference between the parties concerns whether or not Council should be required to provide particulars, presumably with a view to binding the Council not to add to them, of deficiencies in a road constructed as part of a shopping centre development.  The work is said to have been done in 2004 or 2005.  If matters had proceeded without problems the Council would have issued a certificate of practical completion and taken over responsibility for the road subject to a maintenance period of six months.

The Court doesn't know when the Council was first pressed to accept the works.  With the passage of time the stage has now been reached where the Council contend that the road has failed.  There is support for that proposition to an extent in testing which has been done by the applicant.  It seeks in the proceeding a declaration that all the conditions of its operational works approval of late October 2004 have been complied with and that the respondent should forthwith issue a certificate of practical completion pursuant to condition 55 of the approval.

That condition appears to establish as a standard for the work the Council's Land Development Guidelines 1999.  Mr Keliher notes that the extract from the guidelines Mr Knox has put before the Court today which became Exhibit 1 is the 2005 version.  He's unable to say whether there are any relevant differences.  Condition 55 is mirrored in condition 8, which requires completion of the development to the satisfaction of the Council's CEO.

The Council is opposed to being put to the expense of having to itemise deficiencies in the road which at some point will become its responsibility.  The testing done in the applicant's interest has, in some respects at least, such as lack of strict compliance with compaction standards, provided evidence which corroborates the Council's complaints about the road. 

As I understand the Council's case, it is that the condition of the road now is so poor, that it cannot have been properly constructed when it was.  The time that has passed is not great and on the face of things the Council's position strikes me as a sensible one.  I think it's right to be concerned that if it is put to the task of assembling particulars over and above those already provided in its officer's assessment of the road, it will at its expense be doing work which is more appropriately done by the applicant which brings proceedings and has the onus of proof in it.

Mr Keliher has indicated that there may be complaints by the Council going beyond the surface of the road relating to the signage at an intersection.

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HIS HONOUR:  Signalisation at an intersection.  One would expect the Council to be forthcoming in the exchange of affidavits which the order I've made directs in respect of any deficiencies it knows about and avoid placing the applicant in a situation of ambush.

I've found it's a difficult judgment to make, but in the end I think it's a situation in which it is for the applicant to establish by appropriate expert evidence that notwithstanding the current condition of the road its condition at the time when it's asserted the Council should have accepted it was in compliance.

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