Gilchrist & Anor v Southern Downs Regional Council

[2011] QPEC 46

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 510 of 2011

JANETTE P GILCHRIST AND ANOTHER	Appellants
and
SOUTHERN DOWNS REGIONAL COUNCIL AND ANOTHER	Respondents

BRISBANE

..DATE 09/03/2011

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 481
Planning and Environment Court Rules 2010, r 4(1), r 8(2), r 9, r19(5)(c)(vii)(A)

Developer appeal where Council rejected a reconfiguration for residential purposes on "reverse amenity" grounds - whether grounds for appeal adequately stated in notice of appeal - distinction between grounds and issues alluded to - Council concerned to know what issues were contested

HIS HONOUR: The order the court makes is based on Mr Hayden's draft, but it has added to it paragraph 7A under the heading "Disputed Issues". It's in these terms. By 25 March 2011 the appellants are to notify the respondent which of the issues referred to the preceding paragraph are contentious.

...

HIS HONOUR: The court has made an order in terms of the initialled draft containing directions for the future conduct of this appeal which has been described by Mr Connor, the Council's solicitor, as a reverse amenity case. The Council has rejected a reconfiguration application on the basis of concerns that it may produce residential lots too close to a mining venture.

Mr Hayden, the appellant developer's counsel, tells the court that there's been a good deal of similar litigation over several years with a history of resolution at mediation exercises which, for special reasons, have been conducted by private mediators. One of the contentious issues today has been whether mediation or a similar ADR exercise before the Registrar should occur before experts are active or after.
Mr Connor is suggesting that little would be achieved in the former scenario.

That dispute has been resolved by providing for a two or more part ADR exercise. Dispute as to whether this ought to occur in Warwick with an inspection possibly included, as Mr Hayden says happened when the private mediators were involved, has been resolved by leaving the venue issue to the Registrar.

There's been another dispute between Mr Hayden and Mr Connor, essentially to do with terminology and whether liberty to apply should be included in the order or an adjournment of the application for further directions to a date to be fixed on two days notice, which may possibly assist the appellants, given their remote location. In the end the court didn't have to make a decision. The two days’ notice proposal was accepted. Liberty to apply is probably always available in the court in any event.

The third matter of contention, which might have produced an interesting legal debate, concerned Mr Connor's request that the directions order include a requirement that the appellants notify grounds of appeal by the 25th of March after the parties have notified what they say are the issues in the appeal.

Mr Connor's contention, which I think has a good deal to commend it, is that the grounds of appeal in the notice of appeal, being limited to the following and I quote.
"7. The respondent has not properly assessed the development application and has adopted an arbitrary approach to requirements to separate extractive industry uses from residential uses. 8. On a proper assessment of the development application the development application should be approved subject to reasonable development conditions" does not constitute a statement of grounds.

A detailed outline of submissions Mr Hayden was given leave to read and file refers to section 481 of the Sustainable Planning Act 2009 and paragraphs (1) to (4) of it, also to rules 4(1), 8(2), 9(a)and (b), 19(5)(c)(vii)(A) of the Planning and Environment Court Rules 2010 (and rules 6, 38 and 41(3)). Mr Hayden contends that there's a difference between issues and grounds, that paragraphs 7 and 8 as set out above adequately address what's required by the section in respect of stating the grounds.

It's been possible to avoid having to determine under considerable pressures of time today what is required by way of statement or grounds. Mr Connor made it clear what he really wants to know is what the appeal is all about and what preparation his client has to do for it. That's achieved if, by the date he had in mind, the appellants indicate which of the issues that may be notified in the various ways set out in the directions order are contentious.

Order as per initialled draft.

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The case of Gilchrist & Anor v Southern Downs Regional Council was heard in the Planning and Environment Court, with Judge Robin presiding over the appeal. The appellants, Janette P Gilchrist and another, appealed against the Southern Downs Regional Council's decision to reject a reconfiguration for residential purposes, citing concerns about the proximity of residential lots to a mining venture. The respondents, the Southern Downs Regional Council and another party, defended the decision based on reverse amenity grounds. The court was tasked with determining whether the grounds for appeal were adequately stated in the notice of appeal and whether there was a clear distinction between the grounds and issues alluded to in the appeal.

The legal issues that the court needed to resolve included the interpretation of section 481 of the Sustainable Planning Act 2009 and various rules of the Planning and Environment Court Rules 2010. The primary issue was whether the notice of appeal adequately outlined the grounds for the appeal, or if it merely referred to the issues that were contested. The respondents argued that the notice of appeal did not sufficiently state the grounds, while the appellants contended that the provided paragraphs adequately addressed the statutory requirements. The court also needed to consider the appropriate timing for alternative dispute resolution (ADR) and mediation exercises in relation to the appeal.

The court ruled that the notice of appeal did not adequately state the grounds for the appeal as required by law. However, the court decided that the dispute over the adequacy of the grounds could be resolved by having the appellants specify which issues they considered contentious by a certain date. This approach allowed the court to avoid making a definitive ruling on the interpretation of the statutory provisions and rules under the pressure of time. The court also directed that the ADR and mediation exercises could proceed in a phased manner and left the decision on the venue of these exercises to the Registrar. The court concluded that the appellants needed to provide clarity on the contentious issues, which would assist the respondents in preparing for the appeal.

The final order of the court was in line with the initialled draft, with an added paragraph to direct the appellants to notify the respondents of the contentious issues by a specified date. The court did not need to decide on the other disputes between the parties, as they were resolved through the court's directions. The order ensured that the appeal process moved forward in an organised manner, with clear directions for the future conduct of the appeal.

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