Fabcot v Cairns Regional Council (No 2) - [2021] QPEC 40

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Fabcot v Cairns Regional Council (No 2) [2021] QPEC 40

PARTIES:

FABCOT PTY LTD ACN 002 960 983

(Appellant)

v
CAIRNS REGIONAL COUNCIL
(Respondent)

AND

DEXUS FUNDS MANAGEMENT ACN 060 920 783
(First Co-Respondent by Election)

AND

CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC
(Second Co-Respondent by Election)

AND

INDIGENOUS BUSINESS AUSTRALIA AS TRUSTEE FOR THE IREIT SUB-TRUST
(Third Co-Respondent by Election)

AND

TRINITY PARK INVESTMENTS PTY LTD ACN 123 732 525 ATF AND L’ARMONIA PTY LTD ACN 140 784 756 ATF
(Fourth Co-Respondent by Election)

FILE NO:
201, 221 and 223 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

12 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2021

JUDGE:

Everson DCJ

ORDER:

Leave to adduce further evidence granted, limited to the extent set out in paragraphs [22] – [25].

CATCHWORDS:

PLANNING & ENVIRONMENT – APPLICATION – Application to adduce further evidence at the remitted hearing of the appeal – extent to which further evidence should be adduced

LEGISLATION:

Planning Act 2016 (Qld) ss 45 and 60

Planning and Environment Court Act 2016 (Qld) ss 46, 63 and 65

CASES:

Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1

H A Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

COUNSEL:
B D Job QC and M J Batty for the Appellant
R S Litster QC and L Sheptooha for the Respondent
D R Gore QC and J G Lyons for the first Co-Respondent by Election

G A Thompson QC and E J Morzone QC for the Fourth Co-Respondent by Election

SOLICITORS:
Keir Steele Waldon Lawyers for the Appellant
McCullough Robertston for the Respondent
Hopgood Ganim for the Frist Co-Respondent by Election

Emanate Legal for the Fourth Co-Respondent by Election

Introduction

The applications in pending proceeding before me both have their genesis in the reasons for judgment in Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17 (“the P&E Court decision”).
The P&E Court decision concerns three appeals relating to the decision of the respondent (“the Council”) to the issue a preliminary approval for a Shopping Centre and Health Care Services and reconfiguration of a lot into 14 lots together with a development permit for a Child Care Centre, Service Station, Food and Drink Outlet, operational work for an Advertising Device and reconfiguring a lot into four lots and an access easement on land situated at 171 – 173 and 175 Trinity Beach Road, Trinity Beach (“the proposed development”).
On 18 April 2019, the P&E Court ordered that all of the appeals be joined and that Appeal 201 of 2018 be the carriage appeal for each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QPEC 40
Decision Date: 12 August 2021

CaseChat Overview and Summary

In the case of Fabcot v Cairns Regional Council (No 2), the parties involved were Fabcot, a developer, and the Cairns Regional Council, a local government authority. The dispute centred around an application to adduce further evidence at the remitted hearing of an appeal regarding planning and environmental matters. The case was heard in the Queensland Land Court, presided over by Justice Byrne.

The primary legal issues that the court had to address were whether the remitter of the case allowed for the introduction of new evidence and, if so, to what extent. The remitter was focused on a specific error in the construction of a legal provision. The court had to determine if the new evidence was necessary to address this error or if it strayed beyond the remitter's scope. This decision hinged on the discretion granted by the Planning Act and the Planning and Environment Court Act.

Justice Byrne considered the principles established in previous cases, particularly the Walker Corporation case, which emphasised the importance of finality in litigation and the need to limit the rehearing to the identified error in law. The court acknowledged the submissions from both Fabcot and the Cairns Regional Council, as well as TPI and Dexus, who sought to adduce further evidence. Ultimately, the court granted leave to adduce further evidence but limited it to specific areas outlined in the judgment, ensuring that the remitter was strictly adhered to.

The final orders of the court granted leave to adduce further evidence, but only to the extent specified in the judgment, ensuring that the rehearing focused on the identified error in law and did not stray into other areas. This decision maintained the balance between allowing necessary evidence and preserving the finality of litigation.

Orders

Orders of the court

Leave to adduce further evidence granted, limited to the extent set out in paragraphs [22] – [25].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the avoidance of any further doubt, the order dated 28 May 2021 contemplates the rehearing of the appeal being confined to the identified error in construction referred to in the passages of the judgment of Brown J quoted above and nothing else. The discretion which I must re-exercise arises pursuant to s 46 of the PECA and ss 45 and 60 of the PA. All of the findings of fact are undisturbed. Only the error of law identified above is the subject of the remitter. It is not a matter for debate at the remitted hearing.The applications to adduce further evidence I now turn to the applications before me which seek leave to adduce further evidence. A good starting point is the observations of Basten JA in Walker Corporation where he affirmed the approach of Briscoe J below in exercising the discretion to allow further evidence on the re-hearing of the matter following the remitter:“First, he noted that an appeal which had succeeded on a question of law should be treated as identifying the limits of the defects in the earlier judgments. He continued at [24]:On the pending remitter, the undisturbed findings stand and all that seems to be called for is a determination of the outstanding issues on the existing evidence in accordance with law – subject to the admission of any further evidence and any leave to amend, which lie in my discretion …That statement reveals no error.Secondly, his Honour identified as a constraint the public interest in the finality of litigation: at [25]. He continued:There is a book containing the undisturbed findings of the primary judge and the evidence at the earlier hearings. There is no reason why the book should be rewritten or supplemented by additional evidence unless the errors of law found on appeal require it or other circumstances make it appropriate to do so.So far as it goes, that statement is also unexceptionable: the real question was whether there were circumstances which made it appropriate to rehear evidence or to allow further evidence to be called.”[9][9]Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at 22, [86] – [88]. Also affirmed by Young JA at 27, [117] – [118]. Both Dexus and TPI have placed before the court the further evidence which they intend to adduce. Essentially this evidence falls into two categories, firstly, planning evidence and secondly, evidence relevant to considerations of economic impacts and need. TPI expressly submits that the circumstances which have changed since the hearing giving rise to the P&E Court decision which are relevant to the exercise of my discretion at the remitted hearing are:1.the proposed major amendment package to CP 2016 known as version 3.0;2.the progression and status of the TPI code assessable development application for a shopping centre which was lodged on 6 November 2020 (“the TPI application”);3.population growth and projections and their impacts on the extent of the economic, community and planning need for the proposed development; and4.whether and to what extent the trading performance and tenancy vacancy rates at Smithfield Shopping Centre have changed since the hearing.Similar submissions are made by Dexus. Furthermore, both TPI and Dexus seek leave to call further expert evidence addressing these issues and also as to the meaning of the provisions of the LDMR Zone Code in the context of the proposed development. Both Fabcot and the Council reserve the right to call evidence of their own in response.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fabcot v Cairns Regional Council (No 2) [2021] QPEC 40
PARTIES:	FABCOT PTY LTD ACN 002 960 983 (Appellant) v CAIRNS REGIONAL COUNCIL (Respondent) AND DEXUS FUNDS MANAGEMENT ACN 060 920 783 (First Co-Respondent by Election) AND CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC (Second Co-Respondent by Election) AND INDIGENOUS BUSINESS AUSTRALIA AS TRUSTEE FOR THE IREIT SUB-TRUST (Third Co-Respondent by Election) AND TRINITY PARK INVESTMENTS PTY LTD ACN 123 732 525 ATF AND L’ARMONIA PTY LTD ACN 140 784 756 ATF (Fourth Co-Respondent by Election)
FILE NO:	201, 221 and 223 of 2018
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court, Cairns
DELIVERED ON:	12 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2021
JUDGE:	Everson DCJ
ORDER:	Leave to adduce further evidence granted, limited to the extent set out in paragraphs [22] – [25].
CATCHWORDS:	PLANNING & ENVIRONMENT – APPLICATION – Application to adduce further evidence at the remitted hearing of the appeal – extent to which further evidence should be adduced
LEGISLATION:	Planning Act 2016 (Qld) ss 45 and 60 Planning and Environment Court Act 2016 (Qld) ss 46, 63 and 65
CASES:	Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 H A Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
COUNSEL:	B D Job QC and M J Batty for the Appellant R S Litster QC and L Sheptooha for the Respondent D R Gore QC and J G Lyons for the first Co-Respondent by Election G A Thompson QC and E J Morzone QC for the Fourth Co-Respondent by Election
SOLICITORS:	Keir Steele Waldon Lawyers for the Appellant McCullough Robertston for the Respondent Hopgood Ganim for the Frist Co-Respondent by Election Emanate Legal for the Fourth Co-Respondent by Election