Ausbuild Projects Pty Ltd v Redland City Council

[2010] QPEC 153

[2010] QPEC 153

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1302 of 2009

AUSBUILD PROJECTS PTY LTD	Appellant
and
REDLAND CITY COUNCIL AND ANOTHER	Respondents

P & E Appeal No 1303 of 2009

PEET THORNLANDS PTY LTD               Appellant

and

REDLAND CITY COUNCIL AND ANOTHER      Respondents

BRISBANE

..DATE 14/12/2010

..DAY 1

CATCHWORDS

Orders resolving developer appeals contain development conditions referring to confidential information and documents protected by "Fielder Gillespie" orders - such material directed to be kept sealed while confidentiality remains appropriate
HIS HONOUR:  Let's deal with the Ausbuild and Peet Thornlands appeals first.

Reasons have been published to the parties.

MR HOUSTON:  Yes, your Honour.  I wasn't sure how your Honour
wanted to deal with the judgment in respect of the matters but the matter has otherwise been finalised and there are judgments to hand up resolving the - both the appeals by allowing the appeals and granting the application subject to conditions.

HIS HONOUR:  But the conditions are now ready, are they?

MR HOUSTON:  The conditions are now ready in a package.  It's
been circulated.

HIS HONOUR:  And Mr O'Dwyer hasn't found any more to -
anything in the new conditions to contest.

MR O'DWYER:  That's correct.

HIS HONOUR:  So you've identified your points and they were
run and the Court formed a view.

MR HOUSTON:  And your Honour will recall there were - in each
case there were two infrastructure agreements which form part
of the conditions.  So the judgment attaches the conditions in each case, and then the two infrastructure agreements are attached to each of the judgments......

MR HOUSTON:  Your Honour, there is one matter that's arisen
during the break that perhaps - that could be addressed.  A
concern has been raised on behalf of the council that the
infrastructure agreements - each of the infrastructure
agreements in each of the appeals contained in schedule 3 -
reference to the structure plan map and in fact a copy of the
map and some others which were the subject of the Fielder
Gillespie order.

HIS HONOUR:  I suppose it can be placed – it can be identified and placed in an envelope et cetera. I don't see why that can't be part of the order.

MR HOUSTON:  That was our submission that it could be part of
the order.  It assists if we could take the orders back
and separate out the schedules in each-----.

It's a matter of two minutes-----

HIS HONOUR:  All right.

Are you happy about doing it that way, Mr Ure?

MR URE:  Absolutely, your Honour.

HIS HONOUR:  It’s the council with the greatest
concern in keeping these matters confidential.

MR URE:  In each judgment there were two infrastructure
agreements-----

HIS HONOUR:  Yes.

MR URE:  -----and in each infrastructure agreement there is a
schedule 3 with an index and maps.  So there are four
schedules and three in the two judgments to be placed in
sealed envelopes not to be opened except with the order of the
Court.

HIS HONOUR:  Do you have any problems with that, Mr O'Dwyer?

MR O'DWYER:  Other than that's extraordinarily unusual, your
Honour.

HIS HONOUR:  I know it's extraordinarily unusual.  I don't
like sealing these things.  But presumably it occurs.  Has it ever happened that Fielder Gillespie material got out?

MR URE:  Not from the Court though.

MR HOUSTON: -----I've prepared two tables-----

HIS HONOUR:  All right.

MR HOUSTON: -----and I'll hand up two copies of each.  One for
the Ausbuild appeal, and one for the Peet appeal.

MR HOUSTON:  Your Honour's probably familiar perhaps with the plans generally, which were the subject of the hearing.

HIS HONOUR:  Yes.

MR HOUSTON:  The tables simply summarise the further changes
in the right-hand column compared to the order made by his
Honour Judge Pack and the original application.  Perhaps if I
could just invite your Honour to read through each of the
tables.

HIS HONOUR: You want a determination that these are minor changes or permissible changes? 

MR HOUSTON:  Minor changes.  The changes are clearly in our
submission are minor changes.  The number of the matters that
are referred to in fact such as the road dedications which
have resulted in the loss of a small amount of area are
consequences of-----

HIS HONOUR:  They're all confidential in the sense that
they're - are they effecting what's in the master plan -
what's in the Fielder Gillespie material?

MR HOUSTON:  I'm not sure that any concern arises out of the
identification of the changes themselves in terms of Fielder
Gillespie orders, and, your Honour, the approval itself and
the plans that have been approved, which are annexed to the
judgments your Honour's given this morning, will be matters of
public record.  It's just the documents that came from the
structure plan that have been taken out.

HIS HONOUR:  Well I can see, looking at Peet, we’re getting a lot more green space; well that's usually acceptable.  But there's a bit of a trade off for wildlife in the next section.  And the test is “substantially a different development,” is it?

MR HOUSTON:  That's correct, your Honour.  Yes.

HIS HONOUR:  And, of course, I'm comparing it with the
original, not with what Judge Pack authorised.  That's right, isn't
it?

MR HOUSTON:  That's correct, your Honour.  The original detail
is set out in the table as well.

HIS HONOUR:  Well you're going with what Judge Pack did about
the pink residential and the green open space, aren't you?

MR HOUSTON:  That's correct, your Honour.

HIS HONOUR:  Okay.  Thank you.

MR HOUSTON:  Yes.  And the changes from there, when one
compares them to the plans, is insignificant in our
submission.  That's all.

There are two judgments in each appeal, your
Honour, and for each judgment there will be schedules 3 that
have been extracted.

HIS HONOUR:  And I've got to say something in the order about
that, haven't I.

MR HOUSTON:  Yes, your Honour, that would be appropriate.

There's schedule 3 to annexure A which is one of the infrastructure agreements, and schedule A to annexure B which is the other infrastructure agreement.

HIS HONOUR:  It is ordered that to preserve the confidentiality of "Fielder Gillespie" documents, schedule 3 to each of attachment A and attachment B in annexure A be placed in sealed envelopes and not be opened except by order of a Judge.  Now the time might come before long when –

the need for confidentiality is gone.

MR HOUSTON:  That's expected, your Honour, but at some point
in the reasonably near future I understand.

MR O'DWYER:  If your Honour wished to – avoid the necessity to seek an order you could go on to say that - or upon the public
notification of the draft structure plan, for example.  To save the parties coming back.

HIS HONOUR:  I'll just make it known that I would be happy to make that order on the basis of an email communication that have done rounds of all the parties.

Orders as per initialled draft in both appeals.