Bon Accord Pty Ltd v. Brisbane City Council

[2008] QPEC 72

[2008] QPEC 72

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 1962 of 2008

BON ACCORD PTY LTD (CAN 009 739 637)	Applicant
and
BRISBANE CITY COUNCIL	Respondent

SOUTHPORT

..DATE 23/09/2008

ORDER

HIS HONOUR:  This is an application by the applicant for leave

to amend the originating application and a cross application by the third respondent, seeking to limit the issues in the appeal in a way which would prevent the applicant from raising some further issues by way of amendment.

The application for leave to amend is not consented to, nor

Opposed, by the Brisbane City Council, which will simply abide

the order of the Court.  The amendments are opposed by the third respondent.  It was the third respondent who took the carriage of the matter in so far as the argument is concerned.  The second and fourth respondents' attitude is to support the position of the third respondent, although no material was read on behalf of the second or fourth respondents and they did not seek to make submissions today in addition to those which were made by Mr Lyons QC for the third respondent.

The third respondent is a business which is developing a

supermarket based shopping centre at Sandgate, in reliance on

certain permits which they have obtained.  The applicant, Bon Accord, is concerned with an existing shopping complex and commenced proceedings in this Court seeking declarations and orders.

The declarations sought were that a certain approval granted for a material change of use, for centre activities, was not valid and of no effect; that an approval for building works was similarly not valid and of no effect, and that the work which has commenced on the site constitutes assessable development without an effective development permit.  The orders sought include orders that works stop.

The matter is set down for hearing to commence on Monday the

29th of September 2008 for a period of 5 days.

Subsequently to the filing of the originating application the

applicant has given notice that it intends to expand the

issues and make alterations to the orders sought.  That has

been done in stages.

In the first stage, notice was given, on 2 September,

of a proposed amended originating application.  That included

changes which sought a declaration in respect of a development permit for signs and line markings, storm water drainage and roadworks.  The proposed amendments sought a declaration that that permit was not valid and was of no effect for certain reasons.  There were certain other amendments notified at that time.  The respondents do not oppose the leave to amend in so far as it would incorporate the amendments notified at that stage.

Subsequently, however, the applicant gave notice on the 15th

of September, of some yet further proposed amendments

and it is those to which objection was taken by the

respondents other than the Brisbane City Council.  Those

amendments are shown in a highlighted fashion on Exhibit 1.

They may generally be described as relating to a number of

different matters, being:

1.  Whether the development has an

excess gross floor area, which would require an approval in

response to an impact assessment application.

2.  The validity of a certain reconfiguration of lot permit;

3.  Whether development is occurring in accordance with the

conditions of approvals;

4.  Whether the development application accurately described the land  and in particular, whether it ought to have included land in Bowser Parade and Lagoon Street;

5.  Whether there was a material change of use in Lagoon Street and,

6.  Further allegations of conflict with the Centre Design  

Code.

In the course of the argument the issues narrowed somewhat.

Mr Gibson QC, for the applicant, in recognition of the merit in the third respondent's submissions in relation to the
amendments relating to reconfiguration, withdrew his client's application to amend the originating application to deal with that point.  Mr Lyons QC also withdrew his client's objections to further amendments insofar as they dealt with the matters of conflict with the Centre Design Code.  The other matters remain controversial.

The matter was the subject of lengthy submissions on the basis

of a deal of material.  It is unnecessary for me to repeat in

detail everything which was canvassed and it is impractical for me to do so in any event.  In summary, the third respondent opposed the amendments which remain controversial on the grounds that the applicant had not given a sufficient

explanation for the late notification of its intention to make

the amendments and that there would be significant prejudice,

which is not able to be remedied by an order for costs, in the

event that the Court were to allow the amendments at this

stage.

The prejudice was said to occur in a number of ways, which may

be summarised as relating to two matters.  Firstly, prejudice

in the preparation of the case and, secondly, prejudice which

would arise if the amendments resulted in any delay to the

determination of the case. 

In opposing the amendments

Mr Lyons QC referred me to The State of Queensland v JL

Holdings Pty Ltd (1997) 189 CLR 146, to Landmark Operations

Limited v J Tiver Nominees Pty Ltd and others (2008) SASC 133

and to The Beach Retreat Pty Ltd and another v Mooloolaba

Marina Limited and another (2008) QCA 224. He placed

particular reliance on a number of the passages of

the judgment of Keane JA with whom McMurdo P and Lyons J

agreed in the Beach Retreat case.  Those passages included paragraph 51, which he likened to his own client's position.  In that paragraph Keane JA said:

"It was, to say the least, grossly unfair of the appellants to

present the respondents with a choice between curtailing

the proper preparation of their case or jeopardising the

determination of the case promptly in accordance with the

timetable which had been established.  It was apparent that

the prejudice to the respondents was not limited to delay

alone: delay in this case continued the uncertainty as to

title to valuable land and arrangements for its use.  The

learned primary judge could not be satisfied that, in the

circumstances of this case, the adverse consequences of delay

to the respondents would be curable by an order for costs."

In The Beach Retreat case proceedings had been on foot for two

years.  The trial of the matter was set down to commence on

Easter Tuesday, the 25th of March 2008.  On the fifth of March

2008 the appellants delivered a fourth amended

statement of claim pursuant to rule 378 of the Uniform Civil

Procedure Rules.  The respondent then applied for an order

disallowing the amendments.  That application came before

the Court on Easter Thursday the 20th of March 2008.

Upon the primary judge disallowing the amendments, the

appellants declined to lead any evidence in support of the

other claims.  It did not oppose an order dismissing the

proceedings, but then brought an appeal against the

disallowance of the amendments.

As Keane JA noted, although the action had been on foot for two years, no allegation of fraud, being the subject matter of the proposed amendments, had previously been made and there was an absence of any satisfactory explanation for the lateness of the amendments.  It was impossible to suppose that the appellants did not appreciate that, on making the allegations of fraud, that further preparation would not be necessary and that that preparation would inevitably impede the commencement of the trial.

The learned primary Judge described the time allowed for the

trial as "tight" and it was noted that the late commencement

of the trial would inevitably cause substantial delay in its

conclusion.  Indeed, as appears from para 52 of the reasons of

Keane JA,

"The learned primary judge had referred in his reasons to the bare "possibility" that allowing the amendments to stand would result in the trial being unfinished for a long period of time."

Objection was taken to that as being speculative, but Keane JA

said,

"His Honour was well-placed to assess the strength of that

Possibility, and there is no basis on which this Court would

Conclude that his Honour was not entitled to regard that

possibility as sufficiently strong to suggest various

prejudice to the respondents."

Keane JA said at para 50 that,

"It is not a misuse of language to describe this conduct on

the part of the appellants as 'over reaching'."

It was submitted, on behalf of the appellants, that the

applicant's conduct in these proceedings falls into a

different category to the over-reaching conduct of the

appellant in The Beach Resort case. 

The subject proceedings have not been on foot for a long period of time.  The originating application was filed on the 21st of July 2008, only some two months ago.  The application, as filed, was returnable on the sixth of August 2008, but the third respondent, obviously keen to have the matter resolved as soon as practicable, brought an application for directions which was returnable on the 31st of July 2008.  On that occasion orders were made in relation to disclosure and the exchange of material, in accordance with a timetable which anticipated the matter being heard in the October sittings of the Court for five days. 

Neither the applicant nor any other party to the proceedings has sought any complex directions in the matter, which would elongate the timetable or prevent its prompt determination.  Indeed, there have not even been directions made in relation to points of response, by the respondents, to the allegations contained in the originating

application.

Subsequently to those orders being made, the prospect that the

Court might be able to offer earlier trial dates became

apparent and the matter was brought back before the Court on

the 20th of August when the matter was set down for its

current hearing dates.  There were subsequent directions on

the third of September, which adjusted the timetable.

The action therefore has been on foot a for much shorter period of time than was the case.  The Beach Retreat case, but the third respondent claims that, nevertheless, the conduct of the applicant is still characterised by a lack of notifying these issues promptly.  It also claims that it will still suffer prejudice if the amendments are allowed.  In this regard the various amendments should be considered individually.

The amendments with respect to the alleged non-compliance with

conditions are perhaps in the most distinct category.

The focus of the originating application was the validity and

effectiveness of certain approvals.  The amendments sought in

relation to conditions raise a different kind of issue.  That

is, whether the development is occurring in accordance with

the conditions of approvals, assuming that they are valid and

effectual.  Allegations of this kind have not previously been

made.  The other issues go more to the approvals themselves.

In so far as these other issues are concerned, that which

relates to the material change of use in Lagoon Street is, as

Mr Lyons conceded, the least problematic.  The amendments to

which his client does not oppose included the seeking of a

declaration that there was a material change of use.  The further amendments effectively now provide the factual foundation which will be relied upon in support of that allegation, that the development application for the permit to construct New Lagoon Street involved a material change of use from car parking to road.  That has to do with a certain diversion of a thoroughfare.  The fact of the diversion will be uncontroversial, as Mr Lyons acknowledged.  The question will be as to whether that should be characterised as a material change of use.

Mr Lyons pointed to the fact that there was little by way of

explanation as to why that allegation had come late, but said

that he did not want to overplay the issue and conceded that

if that were the only issue, then it is unlikely that it would

have been resisted.

It is the other issues, which relate to the approvals of

themselves, which are more controversial.  That is, those

relating to what has been referred to as the GFA issue, and

those relating to the accurate description of the land.

The circumstances in which those issues came to be notified are dealt with in the affidavit of Mr Williams.  As has already been noted, the proceedings commenced on the 21st of July 2008.  Prior to the commencement of proceedings, the applicant had obtained a raft of documents as a result of a Freedom of Information application directed to the Brisbane City Council.

As the affidavit of Mr Williams deposes, however, disclosure

of documents from the parties occurred in the course of August

of this year.  In particular, copies of documents requested

from disclosure were received in the latter part of August, and finally, with respect to the fourth respondent, on the 2nd of September 2008, under cover of letter of 1st of September
2008.

On the 4th of September 2008 the solicitor for the applicant

considered the material provided on disclosure.  In so doing,

he read a note in a document which suggested that some parts

of the development had moved beyond the site boundary.

On the 8th of September a representative of his client

informed him that, having considered the plans in relation to

the possibility of works having occurred outside the site, he

had become concerned that the gross floor area of the building

might exceed that which was permitted under the town plan in

respect of a code assessable application.

By a letter of the same day, the solicitor for the applicant

Requested, from each of the respondents, a full sized copy of

the most current plans of the development and, again on the same day, the town planner engaged by the applicant, Mr Venn, attended the office of the solicitor for the applicant and collected a set of A 3 plans which post-dated the approval plans.  Mr Venn was instructed to consider those plans and advise whether any building works were occurring outside of the site and to calculate the gross floor area of the building.

It should be added that a previous request made of the

respondents to make plans available had been responded to on

the 28th of August, making them available for collection that

day.

On the 11th of September Mr Venn advised the solicitor for the

applicant that the plans which he had been looking at were not

to scale and he required a full sized set

of plans.  Those plans, which were the ones that had been made

available at the end of August and had been provided to

Mr Holland, the traffic engineer engaged by the appellant,

were then delivered to Mr Venn.

It was on the 15th of September that Mr Venn, having considered the plans, advised the solicitors for the applicant of his opinion that the GFA of the building in relation to plans relating to the building and in relation to building works occurring outside of the site.  It was by letter dated the same day that the solicitor for the applicant wrote to each of the respondents advising them of the intention to propose amendments to raise those issues.

It was contended, on behalf of the third respondent, that the

explanation for delay was deficient in failing to prove that

these issues could not have been investigated at an earlier

time, by reference to the information that had been received

on the FOI application directed to the Brisbane City Council.

Mr Gibson QC, for the applicant, asked the Court to bear in

mind that the material received on freedom of information was

obviously quite extensive and further material was then

obtained on discovery from the parties through August and that

his client's representatives had been assessing that material

in the context of litigation which was proceeding at some pace, having been commenced by the filing of the originating process in mid July 2008 and progressing towards a hearing only a matter of some two months later.

It may also be observed that, since these development

applications were applications of a kind which were not the

subject to public notification, the applicant's

investigation of the matter had obviously depended upon the

freedom of information request, in order to commence the

proceedings and then the assessment of the material as it was

received.

I note that the applicant has not sought to suggest that the

amendments which are now being sought would necessarily

require an adjournment of the hearing and it has, for its

part - apart from these notification of issues - not sought to

unduly delay the proceedings.

Whilst the third respondent was critical of the conduct of the

applicant in not foreshadowing such amendments at an earlier

time, I do not consider that the conduct of the applicant,

viewed in the context of this proceeding, is in the

overreaching category which applied to the appellant in the

Beach Retreat case.  The conduct of the applicant is not such as would dissuade me from giving leave to amend.

The next issue to consider is the question of prejudice.  As I

have already indicated, the second and fourth respondents,

apart from supporting the submissions of the third respondent,

did not themselves address any submissions to the Court, nor

was there any material from them before the Court

demonstrating prejudice, so it's difficult to infer any

specific prejudice in relation to those parties.

Insofar as the third respondent is concerned, as I've already

noted, the prejudice which was alleged really fell within two

categories.  That is, prejudice in relation to the preparation

of the case and prejudice in relation to financial

consequences of any postponement of the determination, which

may follow from amendment.

Insofar as the financial prejudice is concerned, the

submissions for the third respondent relate to the holding

costs which are being incurred, the loss of rental income

which will be expected from the project, the potential risk of

losing the major tenant, being Woolworths, and other tenants

and the impost upon the third respondent which has undertaken

considerable borrowings and expended significant amounts of

money on the project.

Reference was also made to the prospect of negative impacts

for the community if there is a delay in providing the

community with the shopping centre and the associated jobs and

revitalisation of the Sandgate Town Centre which, it is said,

would flow from the project.

The history of the project is dealt with in some detail in the

affidavit of Mr Forbes.

The affidavit reveals that in December 2007, prior to

receiving the approvals, a contract was entered into pursuant

to which the fourth respondent was to construct the

development for approximately 11 million dollars.  The

contract itself is not exhibited to the affidavit.  Construction work commenced soon after the approvals were issued and, notwithstanding the commencement of these proceedings, work continues on construction of the centre, which is anticipated to be ready for opening in February of next year.

A delay, if there were to be a delay, in the determination of

the proceedings by reason of any amendments would not lead to

additional holding costs or other financial losses, in terms of loss of rental income, if the third respondent is successful in resisting the orders sought.  The development is being constructed and will continue to be constructed and if the applicant is unsuccessful then there will be nothing about
these proceedings which will stop the development opening in February, whether there is some delay as a result of amendment or not.

The potential for there to be some risk of financial prejudice

arises if one assumes that the applicant will be successful.

That is, that the third respondent, for example, does not hold

relevant approvals or otherwise does not have authority to do

what it is doing.  Even so, the prejudice would then arise in

the sense explained by Mr Lyons.  That is, if an order

were made requiring the development to stop then his client

would wish to take steps to try to legitimise the use by, for

example, applying for whatever development approvals are

required in order to authorise the development.  It would only

do so once the case was determined against it.  If the case is

determined against it at later point in time than would

otherwise be the case, then it may be delayed in taking

remedial actions and that delay might then result in

additional holding costs, the loss of rental, et cetera.

There is, of course, one other factor which bears upon that

potential.  As the material shows, there is separate

proceedings on foot in the Supreme Court in which there is a

challenge to a decision to sell land to the developer.  The uncertainty in relation to the ability of this development to lawfully be carried out arises not just from these proceedings, but from those proceedings also.  Accordingly, as Mr Lyons conceded, the potential for financial prejudice is contingent not only on his client being unsuccessful in these proceedings, leading to some delay in remedial action to recover its position, if it can, in terms of obtaining appropriate approvals, but is also conditional on the Supreme Court proceedings being unsuccessful, so that there is no impediment to development occurring on the land.

That is not to say that that potential contingent

financial consequence ought not be taken into account in the

exercise of discretion, but the submission that any delay

would lead to prejudice by way of incurring holding costs and

the like needs to be seen in that context.

In so far as the community interest is concerned, there is also, of course, a community interest in the law being upheld and due process being followed.  As Mr Gibson QC submitted on behalf of the applicant, whilst these proceedings are bought by his client, they are proceedings which raise matters of public interest.  Namely, the lawfulness of the development and the due following of process under the relevant legislation for the attainment of approvals.

It may be noted that one of the contentions of the applicant is that the approval which is required is an approval which requires impact assessment.  If that was so, then there would be the ability for public participation in response to public
notification.

In so far as financial prejudice is concerned, it is also

relevant to have regard to the length of any delay which might

be occasioned.  It has already been noted that, in the Beach

Retreat case, the learned primary Judge considered that there

was a prospect that if the amendments were allowed to stand,

then the trial might be unfinished for a long period of time. 

I do not think that allowing the amendments would have that

effect in this case.  It is not clear to me that the

amendments would abort the trial which is due to commence next

week, or would postpone its ultimate determination for a

lengthy period of time.

It might be noted that in the course of argument, I made the

parties aware that if the amendments were allowed and if the

third respondent wished to apply of an adjournment

as a consequence, a trial of the proceedings could be

accommodated, otherwise in the October sittings of the Court,

either in the middle of that sittings or towards the end of

that sitting.  That, I note, is the sittings in which the

matter was initially due to be heard.  As it happens, senior counsel for the third respondent said that his client would prefer not to take that course if amendment was to be allowed, but rather, to do its best to meet the amended application within the current dates.

In so far as prejudice in other respects is concerned, the

position with respect to the issues relating to compliance

with the conditions stand in a somewhat different category to

the others.  As has already been noted, the issues sought to

be raised in that respect are issues which are new and really

relate to a new topic, not contemplated in the existing

proceedings.

It was conceded by Mr Lyons QC (a concession adopted by the other respondents) that, if those issues were not permitted to be raised by way of an amendment in these proceedings at this stage, then the applicant would not be estopped from commencing fresh proceedings to litigate those issues.  Such a concession, however, is not made in relation to he other amendments which are sought.  That is, if the applicant is denied amendment at this stage in relation to those other issues, then it runs the risk that it may be prevented from agitating those issues by way of later proceedings.

In that context the issues which it raises are not issues

which it has been said are plainly frivolous or vexatious or

lacking in any merit whatsoever, such as to dismiss them as

anything other than a distraction.

In this respect it is also relevant to bear in mind that,

although these issues are raised between parties, they do, as Mr Gibson QC emphasised, relate to issues of public interest
as well.

In so far as the impact on case preparation is concerned,

there is again a distinction between the amendments in

relation to the non-compliance with conditions issues, and the

other issues.  In so far as the amendment of conditions issues are concerned, the affidavit of Mr Wright deposes, on the basis of information belief, that it was the fourth respondent, who under the building contract, was left with responsibility to ensure compliance with conditions and that consequently, until disclosure is obtained, the third respondent does not have sufficient information to address the allegations.

Further, Mr Wright deposes that, at least at this stage, it

would seem that instructions would be required from his

client's project engineers, the relevant director of which is

currently overseas and not due to return until after the trial

dates.  Mr Lyons QC points out that once the position with

respect to the compliance or otherwise with the conditions is

determined, other steps might be taken, for example, his

client may wish to exercise the right to apply to apply to

vary the conditions.

In short, it was submitted that these allegations, which are

of a completely new nature, are allegations in respect of

which there would need to be further disclosure and further

inquiries including inquiries of people who were not available

in advance of trial.  This would necessitate deferral of a

trial date in circumstances where, on the other hand, the

applicant would not be debarred from commencing separate

proceedings if it so wished, even if leave is not granted to

amend the originating application to include those issues in

the current proceedings.

It was therefore submitted that, on balance, the interests of

justice are best served by denying leave with respect to those

issues and I accept that submission.

That then leaves for consideration the amendments which are

otherwise sought in relation to the approval issues.  It was

submitted, on behalf of the third respondent, that allowing

amendment in these respects would have a serious effect upon

preparation for trial.  I should note, as I have already said,

that that submission was not put so strongly with respect to

the material change of use issue as with the other issues,

being the GFA issue and the identity of the land, the subject

of the application issue.

In so far as these issues are concerned, the issues have now

been formulated, although I should note that the GFA issue, as

formulated in Exhibit 1, is subject to further modification to

the calculations, the details of which have been provided to

the third respondent.

In addition, the applicant has provided all of its material

that it intends to rely upon at the hearing, including the

material in relation to these issues, so that the third

respondent and, indeed, the other respondents, not only have

notice of the issue and the terms of the issues, but also the

evidence which is to be relied upon.

The affidavit of Mr Wright deposes to the contents of

inquiries which he has made of the various experts who have

been retained by the third respondent in relation to their

ability to meet those issues.

There was some criticism sought to be levelled against the

third respondent for failing to say whether those inquiries

had been made as soon as the intention to amend the issues was

notified on the 15th of September or at some later time, but

I am not inclined to be critical of the solicitor for the

third respondent in that respect, considering that they were

already preparing for the case as originally pleaded, plus the

further amendments that they did not oppose, in circumstances

where no leave then had been granted in relation to the

further amendments sought to be made.

The affidavit of Mr Wright shows that, with one possible

exception, which is the cultural heritage expert, it is

anticipated that the experts, who have already prepared and finalised their reports in relation to the other issues, will be able to deal with the additional issues by way of supplementary reports which are anticipated to be ready by the end of this week.  The heritage expert was less confident, having estimated it may take until early next week.  However, Mr Lyons indicated that if the Court was minded to allow the amendments that his client would submit to a direction that their reports or their further reports be provided by Friday afternoon.

I should add that, in any event, I would propose, in a

case like this, to hear evidence in blocks and there is no

reason why, if one particular discipline is not ready to

proceed very early in the week, that that evidence could not

be heard later in the week.

Mr Gibson, for his part, volunteered that any material in

response could be provided by his client by Monday morning.

He had not received instructions as to whether that could be

done by Sunday afternoon, but, as he concede, if his

instructions are it will be ready by first thing Monday morning, it assumes that the work will be done over the weekend, so it would seem possible that any reports in response could be able to be delivered by Sunday afternoon.

I note in this respect that I have been informed that I will be asked to undertake a site inspection.  That would ordinarily occur on the first day of the case and so at least much, if not, all of the first day would be taken up by way of opening and site inspection.

At this stage, therefore, it seems as though, even allowing

the amendments and even accepting that this will obviously put

some further pressure on case preparation, it seems that it is

entirely possible that the additional issues could be dealt

with by relevant evidence which could be exchanged by the time

the case starts, so that the matter could proceed.

That takes account, at least to some extent, of the suggested

prejudice in the preparation of the hearing, which was relied

upon in Mr Lyons' written submissions, which was an absence of

having any material in reply by the time the case starts.

A further possible matter of prejudice, relied upon on behalf

of the third respondent was the prospect that although the

substance, as it were, of the allegations might be able to be

addressed, that it was possible that there would be further

evidence which the third respondent would wish to rely upon in relation to what may be referred to as the discretionary issue.

That is, if it is, in fact, established that there is some

invalidity or lack of effectiveness of the approvals,

discretionary consideration should, nevertheless, lead the

Court to decline the relief which is sought.  As an example,

Mr Lyons postulated that if the GFA of the building were found

to be excessive, then it might be that evidence can be brought

forward in relation to that excess and whether the building

could be modified to eliminate it.

That is a possibility, but it is not a possibility which I

think tips the balance in this case.  It is possible that any

further discretionary matters might be able to be the subject

of evidence in the course of next week.  However, even if, as a result of the amendments, the third respondent wishes to obtain some further evidence, at a later time, in relation to discretionary matters it would be possible to hear the case, insofar as the substantive matters are concerned, in the course of next week and to hear any further evidence in relation to  the discretion issue either a little later or when a judgment is delivered in relation to the substantive issues.

It is unlikely, in a case like this, that an ex tempore judgment will be able to be given at the conclusion of the trial next week, so there will be, in any event, some delay between the completion of next week and the delivery of a judgment.  If there is some further evidence which ought be directed to a matter of discretion in relation specifically to these matters of amendment, then I consider it likely that that will be able to be accommodated, in one way or another, and I think it is unlikely to cause a substantial delay in the timely disposition of the case.

Ultimately what I have to determine is a matter of discretion,

the guiding principal for which is the interests of justice.

For the reason which I have given, I consider that the

Balance, and the interests of justice, lie against allowing an

amendment in relation to the allegations concerning the breach

of conditions, but lie in favour of allowing the amendments

otherwise.

. . .

MR LYONS:  In my written submission I mentioned at the end an
application for costs about these hearings and effectively
costs thrown away and additional costs occasioned by the
amendment.

HIS HONOUR:  I might reserve that, given the hour, if you

don't mind.