Benson & Burnside Holdings Pty Ltd v. Chief Executive, Department of Main Roads

[2009] QPEC 43

[2009] QPEC 43

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2072 of 2008

BENSON & BURNSIDE HOLDINGS PTY LTD (ACN 123 012 957)	Appellant
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS	Respondent

BRISBANE

..DATE 29/04/2009

ORDER

CATCHWORDS:  Developer appeal against requirements of Department of Main Roads as a concurrence agency - Department seeks direction that appellant supply amended plans, said to be promised under an agreement reached at mediation (not in
evidence) - appellant concerned that provision by it of changed plans might return its development application to an earlier stage, and permit the Heritage Council to become involved (in light of a recent listing) - direction refused

HIS HONOUR: This is an appeal of an unusual kind in my experience. For present purposes I accept from the appellant's counsel, Mr Cronin, that it's properly brought under the Transport Infrastructure Act in a proceeding in which the sole respondent is the Chief Executive of The Department of Main Roads as an appeal against the Department's requirements restricting access between the proposed development and Anzac Avenue in Redcliffe.

The Assessment Manager is the Local Government, which is not a party.  The contest between the parties today centres on the respondent's asking for an order which would require the appellant to provide amended plans.  It's asserted from the Bar table by Ms Azimi that the appellant is obliged to do that in consequence of an agreement, or agreements, reached in mediation exercises which occurred on the 10th of November last year and the 8th of December last year.

The appellant's approach appears to be that, regardless of what might have happened in the mediation, it's entitled to proceed in the appeal at its own risk on the basis of its original claims.  Mr Cronin expresses confidence that the Local Council will be supportive of its application.  There's no formal application from the respondent to place before the Court the signed agreements resulting from the mediation exercise.  There's no opportunity for the appellant to place before the Court evidence that whatever such agreements might say on their face there were related understandings requiring some qualification.  As already indicated, it might be that no such agreement constrains the appellant.  Ms Azimi tells the Court that in recent times the Heritage Council has listed Anzac Avenue, Redcliffe, as a street.  That, in the appellant's view, may give the Heritage Council an entitlement to become involved in its development application if the plans are changed.  If they are changed he says that the development application is forced back to an earlier stage, that public notification may have to be repeated, et cetera. 

It appears certain that there will be delay and that cost, possibly substantial, would be associated with that.  The appellant accepts that the outcome of the appeal in Court may well be that the Department gets its way.  It may be that conditions satisfying the Department's desires are imposed in the Court, or even by the Council.  From the developers' point of view, that is plainly preferable to a scenario in which the same outcome might follow the inconvenient delays, trouble and attendant costs which Mr Cronin has described. 

I'm anxious not to preclude the respondent from pursuing its point that the appellant is bound to amend its plans and have incorporated provision in the directions order, which I've signed, to specifically indicate that the liberty to apply given to the parties includes liberty to the respondent to make an application seeking a requirement that the appellant deliver amended plans.

Ms Azimi was interested in having the matter adjourned until next Wednesday, when I'm expecting to be sitting.  I've given her an undertaking to entertain the matter then if her client wishes to pursue it.  Order as per the initialled draft.

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