BMD Properties Pty Ltd v Redland City Council

[2010] QPEC 86

[2010] QPEC 86

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1016 of 2009

BMD PROPERTIES PTY LTD	Appellant
and
REDLAND CITY COUNCIL	Respondent

BRISBANE

..DATE 03/09/2010

ORDER

CATCHWORDS

Integrated Planning Act 1997, s 4.1.23(2)

Developer appeal in which nothing done since Council's entry of appearance - listed for review at court's instance - on second mention (after a month's adjournment) appellant's solicitors still unable to say whether appeal would proceed - court entertained oral application to strike out appeal (for which documentation had been prepared) - it (and
appeal) adjourned at appellant's request - appellant ordered to pay costs occasioned by adjournment

HIS HONOUR:  The court makes the following orders:

(1) Adjourn the oral application of the respondent to strike out the appeal to 17 September 2010.

(2) Order the appellant to give the respondent written notice as to whether it intends to proceed with the appeal by 15 September 2010.

(3) Adjourn the appeal for review on 17 September 2010 for further consideration and giving oral directions if the appeal for the respondent's application are to proceed.

(4) The respondent is to provide to the appellant material in support of its application no later than 16 September 2010.

(5) The appellant is ordered to pay the respondent's costs occasioned by today's adjournment, to be assessed if not agreed.

The court marks Exhibit 1, the draft order proposed by Mr Morais, significant parts of which have found their way into the order made.

It is an appeal by a developer against the Council's refusal of a development application (superseded planning scheme) for reconfiguration.

The appeal was commenced on 15 April 2009 and very little has happened in it: indeed, only the entry of an appearance by the Council seven days later.  At the instance of the court, there was a mention before Judge Rackemann on 3 August 2010 when a further review today was directed.

The Council had intended (and apparently prepared some material with a view to) having the appeal struck out, but Ms Lovejoy has not proceeded with that this morning in circumstances where contact has been made by Mr Morais representing the appellant.  Mr Nelms from the firm had appeared on 3 August 2010 seeking, I am told, an adjournment.

Mr Nelms had originally wanted a three months' adjournment before anything significant should happen in the appeal, but apparently on the day reduced that request to one month.

There are undisclosed difficulties on the appellant's side.  Mr Morais indicates to the court today that the firm are having difficulty getting clear instructions.  He seeks another fortnight on the basis indicated in Exhibit 1.  It may be that the appeal goes away.

He resists the making of a costs order against his client but it seems clear to me that there is jurisdiction under section 4.1.23(2)(c),(d) or (e) of the Integrated Planning Act 1997.

Mr Morais is correct that this is only the second day in court for the appeal but it is the second day on which nothing has been achieved, except, unfortunately, to add to the confusion as to whether this is an appeal which the respondent has to prepare for seriously or not.

In my opinion, it is an injustice to the Council and its ratepayers to be brought to court a second time with no progress at all achieved.

Ms Lovejoy indicates the Council may have difficulties in respect of experts, matters in respect of whom may have to be rescheduled.  Perhaps one can understand the cautious approach being taken of the Council bringing experts in, in an appeal such as this, at a very early stage.  One would not expect that there would be significant costs of that kind.  It remains to be seen what the costs assessment exercise would lead to.  Mr Lovejoy declined to suggest a fixed figure for the Council’s costs that the Court might endorse, resulting from her mention of a modest “scale” amount.

Doing his job for his client, Mr Morais has sought to ensure that if there is to be a strike out application, which I suggest would only be likely to succeed if on 17 September nothing is done by way of getting the appeal progressed, it not be determined on 17 September but simply be the subject of directions as to its future determination.  I think the Judge on 17 September ought to make the decision as to whether it is appropriate to deal with the strike-out application.

The order proposed by Mr Morais would have precluded the Judge on that day from determining the strike out application.  As I say, I think it is unlikely that it will be determined favourably to the Council on that day but I would not wish to foreclose the possibility.