Centro MCS Manager Ltd & Anor v. Gold Coast City Council

[2007] QPEC 28

[2007] QPEC 028

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 2965 of 2006

CENTRO MCS MANAGER LIMITED (ACN 051 908 984) AND CPT CUSTODIAN PTY LIMITED (ACN 077 870 243)	Appellant
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 08/02/2007

ORDER

CATCHWORDS: Integrated Planning Act 1997 s4.1.23(2)(d),(e) and (f), s4.1.52 - appellant in an applicant (developer) appeal foreshadowed changing its development application but gave no details - in the circumstances it failed to comply in a timely way (or at all) with an order for particulars - respondent Council sought costs of appellant's application that existing directions be changed - courts expressed concern if any of the grounds giving jurisdiction to award costs was made out, then
all of the circumstances could be considered, including other circumstances enumerated in s4.1.23(2) - whether changing application was "new material" for (f) considered - costs application adjourned.

HIS HONOUR:  The Court has made an order in terms of an initialled draft.  It adopted as the basis, prior to amendments, the Council's proposed a form of order rather than the appellants'.  The appeal concerns a proposed development at Surfers Paradise.  It is presently in the Brisbane list although the standing directions direct a hearing at Southport as part of the Brisbane list in April.

The appellant proposes to change its development application -contemplating that under section 4.1.52 of the Integrated Planning Act 1997 any changes that are made will be declared a minor change and the assessment process will continue within this appeal.

Hearing in April is not feasible, as the appellant has not yet formulated its changes in a final way.  Indeed, it requires a further month to document them.

The appellant seeks a June hearing, the Council opposes that on the basis of the uncertainty attending the details of the development proposal.  I am with the appellant in this regard and sympathetic to its desire that matters proceed expeditiously.  Time is available in June so that dates can be allocated without prejudice to other litigants.

The circumstances are ones in which the Council have strenuously contended that in these circumstances with all their uncertainty a June hearing is premature.  It should receive an understanding approach from the Court if it is sought to vacate the June dates and delay the hearing.

I am with the Council in respect of making further directions as proposed by the appellant those include a direction about ADR, directions about the way in which experts ought to participate and the like.

The parties are willing to proceed with disclosure and inspection, which are well underway, by reference to the existing parameters of the proceeding.  I will make no other directions, except for a further mention and the allocation of dates in June, beyond those that were agreed.  The Council has persuaded me that it ought to have until the 4th of April 2007 to respond to a changed development application rather than the ungenerous two weeks volunteered by the appellant.

I add liberty to apply to the order, as paragraph 9.  That has got some relation to things that have been said.  The matter can conveniently be mentioned on the 11th of April; then any necessary directions may be given. 

The other contentious aspect concerns the Council's application for costs.  That is a limited application, limited to the costs of today's mention, which was not scheduled.  It was instigated by the appellant.

Under section 4.1.23 a jurisdictional basis under sub-section (2) for the Court to consider a costs application must be demonstrated.

Mr Hughes has in his proposed draft order nominated that for purposes of sub-section 2(e) the appellant is in default in complying with an order for the giving of particulars.  It is still not complied with; its justification is that the particulars would be otiose given that the development application is to be changed.  The appellant on the 24th of January advised it was considering taking that course.

My general view is that provided that a jurisdictional basis in section 4.1.23 can be established it is open to the Court to consider all of the circumstances whether or not particular circumstances happen to coincide with any of the paragraphs of sub-section (2).  I can see in the present circumstances scope for reliance on paragraph (f).  Mr Williamson submitted that the description, "new material", is not appropriate to cover the situation of a changed development application.  That is not particularly persuasive to my mind.

I agree with Mr Williamson that the practice of the Court is to facilitate development by an indulgent approach to changing development applications, an approach which is rarely accompanied by the developer being mulcted in costs.  Nonetheless I do not see why a change of the kind foreshadowed here is not a relevant circumstance.  Paragraph (f) incorporates by reference paragraph (d) and although matters in a formal sense have not panned out this way, in a practical sense there is an adjournment of the substantive appeal because of the appellants' commercially sensible conduct.

I am not inclined to resolve the costs application made by Mr Hughes today but I think the Court ought to entertain it and it will be adjourned to a date to be fixed.  Orders as per initialled draft. 

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