Friend v Brisbane City Council

[2013] QPEC 80

[2013] QPEC 80

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 293 of 2013

ROBERT FRIEND     and OTHERS  Appellant

and

BRISBANE CITY COUNCIL  Respondent

BRISBANE

12.04 PM, FRIDAY, 2 AUGUST 2013

JUDGMENT

CATCHWORDS: 

Planning and Environment – appellants sought leave to amend grounds of appeal so as to raise issues in relation to a draft new planning scheme and new temporary planning instrument – where at the time the issues were settled the said planning instruments were not in force – where expert meeting and reporting occurred without reference to said planning instruments - where legal representatives were not aware of the existence of  said planning instruments

COUNSEL:

J Houston for the appellant

B D Job for the respondent

D P O’Brien for the co-respondent

SOLICITORS:

Roberts & Kane for the appellant

Brisbane City Legal Practice for the respondent

Mullins Lawyers for the co-respondent

HIS HONOUR:   There is an application in this matter by the co-respondent by election and also by the appellants.  As it happens, the issues which were raised in the co-respondent by election’s application have really been subsumed in the appellant’s application, so there’s no need to deal with that separately.  The appellants seek leave to amend their grounds of appeal so as to raise issues in relation to the draft new planning scheme, and also a new temporary planning instrument.  And they then wish the experts to meet again to discuss those issues, and to finalise their reports, or supplementary reports, having regard to those issues. 

The appeal in this case was filed on the 25^th of January, 2013.  On the 21^st of February, 2013, an order was made by the court which provided for the identification of issues.  That process was completed on 28 March, 2013, when the co-respondent filed a document identifying grounds alleged to be sufficient to justify approval despite any conflict with the current planning scheme. 

At the time the issues were settled the temporary local planning instrument was not in force, notification of its adopted only having been published later on the 8^th of May, 2013, following its adoption on the day before.  Similarly, whilst a version of the draft new planning scheme was informally available on the internet, the formal public notification process had not commenced.  That did not happen until the 6^th of May, 2013.  It was not suggested that either of those documents was irrelevant to the subject matter of this appeal.  And it would seem appropriate – both in terms of the justice between the parties, and in terms of the public interest – in ensuring that the decision on this matter by this court takes account of all the relevant matters, that the appellant ought be allowed to amend its issues so as to make those documents relevant.  

The particular concern of the co-respondent by election in that regard was the time at which this application is being made, and the fact that, in the meantime, the expert meeting and reporting process has been allowed to occur.  The town planning experts commenced their meeting process on the 9^th of May, and provided a joint report on Friday, the 28^th of June.  The evidence, including the testimony today of the appellant’s instructing solicitor, is to the effect that the instructing solicitor does not have great experience in planning matters, is reliant on her client’s consultant town planner and on counsel to notify her of relevant matters, and was unaware of either of these documents until early July. 

At a conference that was held just shortly before the expert meeting process commenced, the fact that there was a draft planning scheme in prospect about to be notified, was discussed between counsel and the consultant town planner, but neither had the details of the document, and the instructing solicitor was not at the conference.  Counsel was not available in the days between that conference and when the expert meeting process commenced, and the town planner decided to commence the meeting process without reviewing the draft scheme, with the intention of   dealing with it in the conference if it came up.There was some criticism on the part of the co-respondent by election of the lack of diligence at that time in following up the details of the draft planning scheme, at least from before the expert meeting process commenced, and indeed went to conclusion.  The

temporary local planning instrument is not something which either the consultant planner or counsel seems to have been aware of at the time. 

It was pointed out by counsel for the appellant, however, that the need to now notify the additional issues arises at least as much from what happened in the expert meeting itself.  In the course of that meeting the co-respondent by election’s consultant planner expressed the opinion that the Woolloongabba centre neighbourhood plan, which is a part of the current planning scheme upon which the appellants rely, has been overtaken by events.  Counsel for the co-respondent by election acknowledges that that is not an issue which his client had previously notified.  And he has sought leave to amend his client’s issues to take up that matter.  Leave in that respect is not opposed by the appellant.  As counsel for the appellant however points out, the suggestion that the neighbourhood plan has been overtaken by events needs to be seen in light of the most recent planning document.  And in that regard in particular, the now publicly notified draft planning scheme.

Counsel for the co-respondent by election ultimately conceded that at least some of the provisions of the draft planning scheme, sought now to be relied upon by the appellant, were responsive to that new issue.  Therefore it would appear that the new planning scheme will need to be notified and looked at by the town planners for that reason if for no other.  As counsel for the appellant pointed out, it would be quite inappropriate for the plaintiffs to express opinions about whether the neighbourhood plan has been overtaken by events without having regard to all of the relevant events that have occurred, including most recently the publication of the draft planning scheme.

That being so, it seems as though notification of an additional issue in relation to the draft town planning scheme is, as counsel for the appellant suggested, as much to do with what has come out of the meeting of the planners - and the new issue which the co-respondent wishes to take up - as anything else.  Counsel for the co-respondent said he was not sure that all of the provisions which the appellant now wishes to rely upon are truly responsive to the issue.  Counsel for the appellant expressed a different view.  It seems to me that there is little practical utility in getting caught up too much in the detail of that dispute.  It seems to me that, if the new draft planning scheme is to be the subject of attention by the court, and if the planners are going to have to reconvene to deal with it, then it would be appropriate for them to deal with all of the relevant provisions.  That is, all of the provisions which are relevant to the subject matter of the appeal.

Insofar as the temporary local planning instrument is concerned, the delay in notifying that as an issue has been explained by the fact that it had not come into existence as at the time the issues were formulated and it did not come to the attention of the lawyers or consultant planner until recently.  Further, it is a document of some obvious relevance.  Further, allowing it to be notified as an issue now is unlikely to add to the consideration that has to be given by the planners, at least.  It is concerned with ensuring that buildings on certain sites, including the subject site, are not demolished unless particular criteria related to their structural soundness

are met.  The criteria are matters of engineering and the weight to be afforded to that document is a matter for the court. I accept that it seems to be a matter which has, as pointed out by the counsel for the co-respondent and counsel for the respondent, does not need to trouble the planners in terms of their further meeting. 

On the whole then, I am satisfied that it is appropriate to both permit the co-respondent by election to alter its issues so as to encompass the new issue raised by Mr Ovenden in the expert meeting.  And also to allow the appellant to amend its issues so as to include the issues relating to the draft planning scheme and the temporary local planning instrument. 

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