Comiskey Group v Sunshine Coast Regional Council (No 2)

[2010] QPEC 65

[2010] QPEC 65

PLANNING AND ENVIRONMENT

JUDGE ROBIN QC

P & E Appeal No 492 of 2010

COMISKEY GROUP	Appellant
and
SUNSHINE COAST REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 30/07/2010

ORDER

CATCHWORDS

South-East Queensland Water (Distribution and Retail Restructuring) Act 2009

Court declines to delay appeal about water supply and sewerage development conditions while a decision is made whether Unitywater (in which the respondent Council and Moreton Bay Regional Council jointly participate) ought become a party
 

HIS HONOUR:  The order is in terms of the initialled draft which provides as follows:

“THE COURT IS SATISFIED there has been compliance with giving notice of the appeal to the Chief Executive by the appellant.

IT IS ORDERED THAT:

Adding the owner as an appellant

1. The owner of the land the subject of the appeal (Marcoola Custodians Ltd) is added as an appellant in this appeal as the request to amend conditions was made for and on behalf of the owner.

Grounds of appeal

2. The letter of I.B. Town Planning of 15 September 2009 be taken as the appellant’s grounds of appeal.

Disputed Issues

3. On or before 17 August 2010 the respondent shall notify to the Solicitor for the appellant its proposed amendments to the conditions of the amended approval dated 25 May 2007 or, alternatively, particularised reasons for refusing to amend some or all of the conditions.

4. Should the respondent notify its proposed conditions then within 3 days of the receipt of those conditions the appellant shall notify the respondent which conditions, if any, the appellant challenges.

5. The disputed issues are the challenged conditions or, alternatively, the particularised reasons for refusal.

Dispute Resolution Plan

6. By 20 August 2010 a bundle of relevant documents shall be provided to the Mediator by the appellant with a copy to the respondent which shall be at liberty to supplement the bundle on notice to the appellant of those additions.

7. The parties are directed to attend, participate in, and act reasonably and genuinely in, a mediation to be conducted by the Registrar (Mr John Taylor) on a confidential basis and in accordance with the Integrated Planning Act 1997 (and the transitional provisions of the Sustainable Planning Act 2009), the Uniform Civil Procedure Rules (UCPR), the Planning and Environment Court Rules 2010 and in more than one session, if required, to commence at 9 am on 23 August 2010 or other date as may be agreed or directed by the Registrar.

Nomination of Experts

8. By 30 August 2010 the appellant and the respondent shall exchange lists specifying the name and field of expertise of each expert that the party intends to call to give evidence in the proceeding.

Disclosure and inspection of documents

9. The parties make disclosure of all relevant documents by way of List of Documents on or before 6 September 2010.

10.    The parties shall complete inspection of the disclosed documents (including copies of documents requested) within 2 business days of the receipt of the list of documents.

Meetings of Experts pursuant to Part 3 of the Planning and Environment Court Rules 2010

11.    Each group of experts shall not start their meeting and joint statement processes until after the mediation has been finalised and complete the processes by 27 September 2010 or within 14 days after the completion of the mediation whichever is the later.

12.    Each  joint written statement shall set out:

13.    The issues in dispute that can be resolved by the experts and the basis upon which those issues are resolved;

(a)The issues in dispute that cannot be resolved by the experts;

(b)In relation to each issue that cannot be resolved:

(i)    The data to be used in assessing the issue;

(ii)The methodology to be applied in assessing an issue;

(iii)The standards including all provisions of any relevant local planning   instruments to be applied in assessing the issue; and

(iv)A brief summary of the differences between the experts in their approach to each issue.

14.    The expert meetings shall take place in the absence of the parties and their legal representatives and discussions shall be on a without prejudice basis save for the joint written statements, and:

(a)The group of experts may meet more than once, if necessary;

(b)Each group of experts must meet in person on at least one (1) occasion otherwise the meetings may be by telephone conference, email or facsimile;

(c)An expert must not accept instructions to adopt or reject a particular opinion;

(d)The joint report must be prepared without instructions from the parties or their legal representatives;

(e)The joint report should contain an acknowledgment from each expert as required under Rule 27(3)(a) of the Planning and Environment Court Rules 2010; and

(f)Save for the joint report of the meeting, evidence of anything done or said, or an admission made, at the meeting, is not admissible at a trial of the proceeding except with agreement of all relevant parties. 

15.  Each group of experts shall send the written joint report to the Solicitors for both parties within 2 business days of the completion of the relevant expert meeting.  

16.  By 11 October 2010 the solicitors for each of the parties shall exchange the experts reports (directed to the points of disagreement in the joint expert report) to be relied on in the hearing of the appeal. 

17.  The receipt of further evidence from expert witnesses at the final hearing which differs from that contained in the joint experts reports to which the expert was a party shall be prohibited except by leave of the Court.

18.    The Appeal is set down for hearing for 3 days in the November 2010 sittings. 

19.  The further hearing of the application be adjourned:‑

(a)for review on 13 August 2010; and

(b)for pre-callover review on 13 October 2010; and

(c)to the callover in Brisbane on 18 October 2010; and

(d)    generally to a date to be fixed and to be relisted, if necessary, upon two days notice in writing by one party to the other parties.”

HIS HONOUR:  That order essentially reflects the Court's intimation of directions that would be given today when the matter was last before the Court a week ago.  There remains contention between the parties as to whether the appellant should be indulged in its desire to get the matter on track for a hearing this year. 

It is aiming for the November 2010 sittings, whereas the Council represented by Mr Soden-Taylor as town agent (experiencing some difficulties in not being the solicitor with the management of the matter), contends that a delayed timetable, which would mean no hearing until next year, is more appropriate. 

The basis on which further time is sought is that Unitywater, which is an emanation of the respondent Council and the Moreton Bay Regional Council, having responsibility under the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009, as from 1st of July 2010 for relevant water and waste water infrastructure services, as the Court was informed ought to be a party. No progress was made during the period of the last adjournment towards identifying the approach which ought to be taken. Mr Soden-Taylor is now seeking another two weeks for that purpose.

In the circumstances I do not think that the progress of the appeal ought to be delayed while a decision is made as to whether another party should be added.  I would expect, should a decision be made that Unitywater should be a party, that the Court would be amenable to its inclusion in the proceeding.  It may be that this produces a necessity for the revision of today’s Court directions - which in turn may occasion delay.

I'm not inclined to build delay in at this stage.  That owes something to the nature of the issues.  This is an appeal against the Council's refusal to change conditions relating to park provision and conditions about water and waste water which it may be determined on the respondent's side of the record are issues for Unitywater rather than for the Council: it has certain responsibility for infrastructure, for example.  While the Court accepts that Unitywater perhaps ought to be a party, it's not appropriate to delay matters while a determination is made about that.

It strikes me that the issues in the appeal ought to be relatively straightforward.  The Council ought be able to formulate its case for rejecting the changes sought to the relevant conditions without too much trouble and investigation, one would think.  Although it's noted that the appeal is one against a deemed refusal rather than an actual one supported by reasons, the directions given will elicit from the Council its reasons for its stance that conditions should not be changed.

Alternatively, there may arise some new proposal about conditions which the appellant might accept. 

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