Bell v Brisbane City Council
[2016] QPEC 18
•6 April 2016 – Ex tempore
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Bell v Brisbane City Council [2016] QPEC 18
PARTIES:
KATE PETA BELL
(appellant)
and
BRISBANE CITY COUNCIL
(respondent)
and
SUNLAND DEVELOPMENTS NO.8 PTY LTD (ACN 128 607 714)
(co-respondent)
and
CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009
(co-respondent by election)
FILE NO/S:
2868 of 2015
DIVISION:
Planning & Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court of Queensland
DELIVERED ON:
6 April 2016 – Ex tempore
DELIVERED AT:
Brisbane
HEARING DATE:
6 April 2016
JUDGE:
RS Jones DCJ
ORDER:
1. The Appellant be granted leave to file and serve a Further Amended Notice of Appeal, by 4pm on 7 April 2016, consistent with the reasons of the Court delivered 6 April 2016.
2. Paragraphs 6 and 7 of the order of the ADR Registrar of 14 March 2016 be vacated.
3. By 15 April 2016 all identified experts (except those identified in the area of town planning), must provide to the parties a joint report that:
a. states the joint opinion of experts about the Issues; and
b. identifies the matters about which the experts agree or disagree and the reasons for any disagreement.
4. By 29 April 2016 any identified experts in the area of town planning must provide to the parties a joint report that:
a. states the joint opinion of experts about the Issues; and
b. identifies the matters about which the experts agree or disagree and the reasons for any disagreement.
5. The Appellant pay the Co-Respondent’s costs incurred as a result of the amendments contained in the Further Amended Notice of Appeal not being notified on 10 February, on the standard basis.
6. The Co-Respondent and Co-Respondent by Election’s costs of the Application be reserved.
7. Liberty to apply.
COUNSEL:
D Gore QC leading M Batty for the appellant
C Hughes QC leading M Williamson for the co-respondent
N Kefford for the co-respondent by election
SOLICITORS:
Connor O’Meara for the appellant
Brisbane City Legal Practice for the respondent
McCullough Robertson for the co-respondent
Norton Rose Fulbright for the co-respondent by election
During the course of giving my reasons I indicated that if any party required more detailed reasons I would hear further from them. A request was made on behalf of the Appellant to provide more detailed reasons in respect of those proposed amendments that were refused. I have reviewed the reasons given at the conclusion of the proceeding and do not consider it either necessary or appropriate to add to what I said then, save for adding the words “namely whether genuine conflict arises” to paragraph 8 below.
I will make my rulings and give some brief reasons, and then I will hear further from the parties if anything arises. Also I reserve my right to tidy up any of the reasons that I do give.
I am concerned here with an application to make substantial amendments to a notice of appeal which is already one of considerable substance. There were, as best as I could ascertain, five specific issues that were addressed during the course of argument.
The first was a matter raised by the co-respondent by election and was directed towards the co-respondent being identified as a potential target for a costs order in the event that the appeal was successful. I cannot see any real difficulty in allowing that amendment. As Mr Gore QC identified, whether or not any costs orders are made will, of course, not only depend on the outcome of the appeal but also on a number of other discretionary matters that might arise. So that amendment will be allowed.
The next matter was that which appears at page 13 of the proposed amended notice of appeal and, in particular, paragraph 13. It raises an allegation of conflict with performance outcome PO2 of the Toowong Auchenflower Neighbourhood Plan Code, and some particulars are given. Particular exception was taken by Mr Hughes QC on behalf of his client, the developer, to the particulars referring to Acceptable Outcome AO23, which appears in exhibit 3 of page 86. At the heart of Mr Hughes’ submission was that it is well-established that not meeting an acceptable outcome does not necessarily result in there being conflict with the relevant performance outcome.
I agree with that observation, but it seems to me that when read in context with paragraph XIII, which is a specific assertion of conflict with performance outcome PO2, as identified in the proposed amendment, it seems to me that the appellant is relying on the failure to meet acceptable solution as, in effect, being sufficient to constitute or establish conflict with performance outcome PO2. I must say, I have some considerable reservation about that, but having regard to what had been identified in the notice of appeal before amendment, I propose to allow that amendment even though, that would have to be described as a marginal call at best.
The third matter was concerned with the amendments which commence at page 14 of the draft amended notice of appeal, which refers to performance outcome PO11 of the Toowong Auchenflower Neighbourhood Plan Code. Reference is made to the conservation of matters of local cultural significance and, in particular, Middenbury. I will allow this amendment. It goes to an important aspect in the appeal. I accept that it does not go to what might necessarily be the most important aspects of the appeal, which I think Mr Hughes probably accurately described as being concerned with height, bulk and scale but, nonetheless, it is a discrete issue and I am of the view that public interests, including those concerned with the appropriate treatment and sympathetic treatment of heritage places, are important factors to bear in mind. And also in this regard, I consider it to be of some significance, although not necessarily determinative, that performance outcome PO11 is site-specific to the extent that it expressly addresses what is referred to as the former ABC site.
The next issue that I have to address is the proposed amendments which commence at page 33. As I understand it, no objection was taken to the proposed amendments which would introduce paragraphs LXVII and LXVIII. However, objection was taken to the introduction of paragraph LXIX. By reference to the provision to the strategic framework that Mr Hughes took me to, I have reached the conclusion that, at best, any of the matters raised in the particulars given at the bottom of page 33 over to pages 34, 35 through to 36, paragraph NN, any of the matters identified therein would be of marginal relevance when regard is had to the real issues in this appeal, namely whether genuine conflict arises.
In addition to that, it strikes me that by allowing those matters to be included in the notice of appeal, it might well result in the parties incurring unnecessary costs and there might also be time ramifications. Accordingly, in respect of paragraph LXIX, commencing at the bottom of page 33 through to page 36 and concluding with paragraph NN, those amendments are refused.
As to paragraph OO, it appears to me that that amendment is out of context. Reference is made back to paragraph 7(a)(1) in the notice of appeal. It would seem to me that the matters addressed in paragraph OO would be more appropriately located in amongst subparagraph (f) on page 8 or VI at page 10 or, indeed, VII. In any event, it seems to me that the existence or, perhaps more accurately, the lack of any meaningful commercial focus is a matter that has been squarely raised already in the notice of appeal. That is, it is already a live issue and on that basis I consider it appropriate to allow the amendment in paragraph OO. I will leave it to the appellant to decide where she wants to place it.
The final matter is at page 37, commencing at the very bottom of page 37, subparagraph (c) dealing with performance outcome PO1 and the Queensland Heritage Place State Code and then continues over to page 38, subparagraph (j). In respect of that amendment, I agree with the submissions made by both Mr Hughes and Ms Kefford, and in this regard in particular, the observation or submission made by Ms Kefford in her written outline of argument, which is:
Even assuming that the conservation management plans are relevant to understanding the cultural heritage significance of Middenbury, the statutory assessment regime does not call for consideration of whether a proposed development conflicts with previous conservation management plans.
It might well be, as Mr Gore pointed out, that those conservation management plans, etcetera, will become relevant matters during the hearing of the appeal but, because a matter or documents may become relevant evidence, is not to the point. In my view the allegation as framed does not raise any real or genuine issue when regard is had to the overall context of the appeal. That is to say, it is not a pleading that identifies any meaningful conflict.
For the reasons detailed above I order that:
1.The Appellant be granted leave to file and serve a Further Amended Notice of Appeal, by 4pm on 7 April 2016, consistent with the reasons of the Court delivered 6 April 2016;
2.Paragraphs 6 and 7 of the order of the ADR Registrar of 14 March 2016 be vacated;
3.By 15 April 2016 all identified experts (except those identified in the area of town planning), must provide to the parties a joint report that:
a.states the joint opinion of experts about the Issues; and
b.identifies the matters about which the experts agree or disagree and the reasons for any disagreement.
4.By 29 April 2016 any identified experts in the area of town planning must provide to the parties a joint report that:
a.states the joint opinion of experts about the Issues; and
b.identifies the matters about which the experts agree or disagree and the reasons for any disagreement.
5.The Appellant pay the Co-Respondent’s costs incurred as a result of the amendments contained in the Further Amended Notice of Appeal not being notified on 10 February, on the standard basis;
6.The Co-Respondent and Co-Respondent by Election’s costs of the Application be reserved;
7.Liberty to apply.
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