Eastpoint Mackay Pty Ltd v Mackay Regional Council

[2017] QPEC 9

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Eastpoint Mackay Pty Ltd v Mackay Regional Council [2017] QPEC 9

PARTIES:

EASTPOINT MACKAY PTY LTD

(Applicant)

v

MACKAY REGIONAL COUNCIL

(Respondent)

FILE NO/S:

4795 of 2011 and 950 of 2012

PROCEEDING:

Application

DELIVERED ON:

9 February 2017

DELIVERED AT:

BRISBANE

HEARING DATE:

9 February 2017

JUDGE:

Rackemann DCJ

ORDER:

The application is dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – PRACTICE AND PROCEDURE – DISCLOSURES – whether documents are directly relevant to the issues in dispute

COUNSEL:

Stewart M Ure for the applicant

Michael A Williamson for the respondent

SOLICITORS:

King and Company Solicitors for the applicant

Colin Biggers and Paisley Lawyers for the respondent

1. This is an application for disclosure in two related proceedings.  Both proceedings relate to a development approval granted by this Court on the 9th of December 2005 to Eastpoint Mackay Pty Ltd, for a preliminary approval for an integrated tourism and residential development in Mackay.  That development approval was subject to a condition about the currency period for the approval.  The currency period was to start the day after the last of two events, namely, the preliminary approval taking effect or the granting of the development lease by the Department of Natural Resources and Mines.  The reason for the second reference is that Eastpoint is not the owner of the land and will rely upon a development lease to carry out the development. 

1. The condition of the approval went on to require that the hotel component of the development be completed within five years of the commencement of the currency period. A proceeding was commenced by originating application seeking to change the date of the completion of the hotel from the end of five years of the commencement of the currency period to within eight years of the commencement of that period. 

1. An appeal was also instituted against the council’s deemed refusal of a request purportedly made under section 383 of the Sustainable Planning Act to amend condition 2 such that the early lapse of the development approval is not triggered by the failure to complete the hotel within a five-year period.

1. The initial term of the development lease was to expire on the 31st of December 2016, but, it appears, has been extended to the 31st of December 2018.  In the meantime, Eastpoint has, quite separately from its attempts to alter the development approval given by the Court in 2005, lodged a new development application over the subject land which does not include the hotel.  The material accompanying that development application stated, amongst other things, that:

“The design of the proposed development is in response to changing economic conditions relating to the viability of the hotel suites component, the ability to attract a proponent for the hotel and the desire of the council for low-impact tourism development of the site.”

1. That development application was approved in January 2016 and, later that year, the solicitors for Eastpoint advised the solicitors for the council that their client had applied to the Chief Executive of the Department of Natural Resources and Mines to renew its lease for 10 years “to enable the completion of the new development approval granted by the council.”

1. The council seeks disclosure of the documents relating to the application for the renewal of the development lease because it suspects, in the circumstances, that it will be for a development lease for a particular purpose, namely, the purpose of the new development approval, rather than the 2005 approval which is the subject of the current proceedings.  That is said to be relevant to the current proceedings on the basis that it would establish that Eastpoint has abandoned any intention of proceeding with the 2005 approval such that the further consideration of the relief which it seeks in the current proceedings lacks any utility. 

1. The application for disclosure is opposed.  Counsel for Eastpoint argued that even if the document did show that the application was being made for a lease of the purpose of the 2016 development approval, that that would not establish that his client had abandoned any thoughts of pursuing the 2005 approval under any circumstances.  He further pointed out that what would potentially be of greater relevance is any decision on the application, rather than the application for a new lease itself. 

1. It seems to me, however, that the more fundamental point, and one which counsel for Eastpoint also relied upon, is that the contention that Eastpoint has abandoned any intention of ever acting upon the 2005 approval, in any circumstances, such as to deprive the current proceedings of utility is an allegation which simply does not, at this point in time, arise on the issues as they have been defined by the parties. 

1. This application proceeded on the common ground that the issues as between the parties are identified in the respondent’s revised statement of position and in the appellant/applicant’s response to that statement. Counsel for the council was unable to point to any part of those documents in which the issue of abandonment and of development intent and lack of utility has been articulated.  Accordingly, until, and unless, the council amends its issues in the proceedings so as to make such an allegation, the documents which it seeks could not be said to be directly relevant to the issues in dispute between the parties at this point.  The application is dismissed.