CW Edmonston Consulting Surveyors v Central Highland Regional Council

[2010] QPEC 87

[2010] QPEC 87

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 69 of 2009

C W EDMONSTON CONSULTING SURVEYORS	Appellant
and
CENTRAL HIGHLAND REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 03/09/2010

ORDER

CATCHWORDS

Where appellant against Council's refusal of a reconfiguration is a consultant acting on behalf of the real "developer" - "developer" uncertain of his entitlement to use the site (said to arise under a lease) - appellant wants time for lease issues to be sorted out - fifth mention of appeal in court with little progress - directions given with a view to limiting work in the appeal (which has once been assigned to a pool for hearing) that would be wasted if it did not proceed, while giving respondent some additional information - order made reserving costs "to raise the stakes"

HIS HONOUR:  The court makes an order in terms of the initialled draft which requires the appellant to respond to the respondent's request for further and better particulars dated 18 August 2010 by 27 October.  It requires both parties to make disclosure by list by 27 October and complete inspection of documents by 3 November.

There is to be a review on 5 November 2010 and the application before the court today, which is the Council's for directions, is adjourned to that date.

I reserve the costs of both parties of today's hearing and occasioned by the adjournment.

It is an unsatisfactory situation, indeed.  The appeal was commenced on 4 November 2009.  The appellant is a planning consultant to a Mr Moon.  The appeal is against the Council's refusal of an application for reconfiguration which, I understand, would create a rural lot of unusually modest dimensions to accommodate what might be called an entertainment activity of a rodeo nature which may, indeed, have been established in the general area, if not on the site, for some time.

This is the fifth occasion on which the matter has been before the court with little achieved.  On the first occasion, which was 9 April, Judge Everson made orders to lead to a hearing in July 2010 which included provision for particulars to be sought and given in April and disclosure to be made in May.

On 9 June 2010, all of those steps were deferred to occur in the month of June.  The matter was taken out of the July pool and not assigned to any other.

On 4 August, the remaining orders of Judge Everson were vacated and a review was ordered for 13 August 2010.  I ought to add that what I have said about Judge Everson's order is subject to the qualification that there wereindulgences granted to the appellant by it in respect of lapsing of the development application and deficiencies of public notification which remained effective.

On 13 August, presumably at the appellant's insistence, an order was made that it serve any request for particulars on the Council within five days and that the Council provide a response on or before 1 September 2010.  That response has been forthcoming today, which is the return date of the Council's application for directions calculated to lead to a hearing in the January 2011 pool.

On the appellant's side, what is now sought is to place the proceeding on hold in unusual circumstances of Mr Moon's entitlement to use the site being under a cloud.  The relevant development application, the court understands, was made with the consent of the owner of the land, not being Mr Moon.  His entitlements arise under a lease which the Council is anxious to see, but has not seen.

It now appears that Mr Moon's entitlements under that lease are in question.  The appellant, in the circumstances, is anxious not to incur further costs in preparing this appeal for a hearing until investigations are made to clarify whether or not there is any point in Mr Moon's appeal going ahead.

Notwithstanding the Council's desire to progress the matter, which can be seen as understandable in light of the trouble which the proceeding has occasioned it and the particular instances in which the appellant has sought orders against it, I think it would be wrong for the court to commit either the Council or the appellant to further costs if there is a prospect that the whole proceeding is going to go away.

That is subject to the qualification that I think it is reasonable for the appellant to be required to provide particulars which it has been asserting throughout it is willing to do and, indeed, to make disclosure which ought to have the effect of giving the Council a better understanding of what the facts relevant to this appeal are.

Mr Skoien, for the appellant, sought 5 November as a review date.  That seems to be a very generous time and it is the practical course to accept it.  It seems to me appropriate to attempt to avoid or limit unnecessary expenditure by deferring matters to do with particulars and disclosure until very close to that adjourned date.

The court invited Mr Kevin to seek costs of the adjournment of the application for directions but that is something he was loath to do.

Nonetheless, I have thought it appropriate in the light of the unfortunate history of this matter, in which five days in court now have achieved virtually nothing, to raise the stakes, and on an even-handed basis, by making the order I have made reserving costs.

Order as per initialled draft.

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