Grosser v Gold Coast City Council
[2000] QPEC 6
•18/02/2000
IN THE PLANNING & ENVIRONMENT COURT
HELD AT SOUTHPORT
P&E NO. 862 of 1999 &
QUEENSLAND P&E NO 1009 of 1999
Before NEWTON D.C.J.
[Re Grosser & Anor v Council Of City Of Gold]
P&E NO. 862 of 1999
BETWEEN DR DAVID GROSSER & ANOR
Appellants
AND COUNCIL OF THE CITY OF GOLD COAST
Respondent
P&E NO. 1009 of 1999
BETWEEN RUTH GROSSER
Appellant
AND COUNCIL OF THE CITY OF GOLD COAST
Respondent
REASONS FOR JUDGMENT
Judgment delivered on 18 February 2000.
Catchwords: Disclosure – Rule 211.(1) Uniform Civil Procedure Rules – obligation of discovery on a party – when documents relate to an issue.
Counsel:Mr M F Marshall (Solicitor) for the Appellants
Mr A Knox (Solicitor) for the Respondent
Solicitors:Phillips Fox for the Appellants
McDonald Balanda & Associates for the Respondent
Hearing Date: 15 February 2000
IN THE PLANNING & ENVIRONMENT COURT
HELD AT SOUTHPORT
QUEENSLAND APPEAL NO. 862 & 1009 of 1999
BETWEEN DR DAVID GROSSER & RUTH GROSSER
trading as AUSTRALIAN IKEBANA CENTRE
Appellant
AND COUNCIL OF THE CITY OF GOLD COAST
Respondent
REASONS FOR JUDGMENT – NEWTON D.C.J.
Delivered the 18th day of February 2000.
A preliminary point has arisen in relation to disclosure which requires determination before these proceedings can be determined. The solicitors for the appellant sent to the respondent’s solicitors by facsimile dated 9 February 2000, a request that the respondent Council make disclosure of the following:-
(1)All files relating to the current development approvals in respect of all properties situated on the southern side of Ashmore Road, between the intersection with Southport-Burleigh Road (east) and the intersection with Campbell Street/Racecourse Road (west).
(2)All files relating to the initial development approval for the Harvey Norman Centre at 31 Ashmore Road;
(3)All files relating to the MCU – extension to Harvey Norman Showroom Centre lodged in May 1999;
(4)All files relating to the development approval in respect of the Anglican Church of Australia, Robina Village, Commerce Drive, Robina;
(5)All files relating to the appellant’s 1997 consent use application in respect of the subject premises;
(6)All files relating to previous development approvals issued in respect of the subject premises;
(7)All files relating to the building application in respect of the subject premises, lodged in 1997 by Konrad Rustemeyer & Associates.
A perusal of attachment “A” to the letter reveals the use of various properties adjacent to the subject site. These include a jewelry studio, architectural office, cosmetic surgery, real estate agency, interior design studio, chiropractor, therapy clinic, ceramic tile studio, surgery, acupuncture clinic, dermatologist, dentist surgery, obstetrician/gynaecologist, solicitors office, chiropractor and building development company.
The solicitors for the respondent council replied to the appellant’s solicitors by facsimile dated 11 February 2000. That communication contended that the respondent council had attended to disclosure of all documents in its possession or control that were directly relevant to the matters in question in the proceedings. Objection was taken to disclosing the documents requested by the appellants solicitors. It was suggested that if the appellant was dissatisfied with the disclosure by the respondent, the matter be raised at a directions hearing on 15 February 2000.
Accordingly, the matter was raised before me at a directions hearing on 15 February 2000. It should be pointed out that these proceedings involve two appeals. Appeal No. 862 of 1999 relates to an application for material change of use, and Appeal No. 1009 of 1999 relates to an appeal against an enforcement notice prosecuting a development offence allegedly committed by the appellant. Both appeals are by agreement to be heard together.
Chapter 7 of the Uniform Civil Procedure Rules deals with disclosure. Division (1) of Part (1) relates to the disclosure and inspection of documents. Rule 211.(1) sets out the duty of disclosure of a party:
“211.(1) A party to a proceeding has a duty to disclose to each other party each document –
(a) in the possession or under the control of the first party; and
(b) directly relevant to an allegation in issue in the pleadings; and
(c) if there are no pleadings – directly relevant to a matter in issue in the proceeding.”
The notice of appeal in respect of the application for material change of use lists the grounds of refusal of the application as follows:-
(a)The proposal does not accord with the intent for development in the Residential-Dwelling House zone as stated in the former City of Gold Coast Planning Scheme 1994.
(b)The proposal does not accord with the Detached Housing designation of Council’s Strategic Plan.
(c)The number of on-site car parking spaces is insufficient for the proposed uses on site, and the car parking layout does not accord with Gold Coast City Council Local Planning Policy No. 1 – Off street vehicle parking requirements.
(d)The proposal is likely to result in an adverse impact on the amenity of the surrounding residential area.
(e)The issues raised by the submitters objecting to the proposal are valid and are supported by Council.
The notice of appeal then sets out in paragraph five the reasons which the appellants contend ought to have been accepted by the respondent for approving the application:-
“(a) Residential – Dwelling House Zone
The respondent has failed to correctly interpret and apply Section 4.3.1 of the Planning Scheme for the City of Gold Coast in respect of the intent of the Residential Dwelling House zone. In particular, but without limitation:
(i)The use applied for will not impact on residential amenity and will not introduce additional traffic onto any minor residential roads;
(ii)The development applied for is complementary to and compatible with the surrounding area;
(iii)The area of Ashmore road in the vicinity of the subject site has lost its integrity as a residential area and accordingly there is no justification for the respondent to adopt the view that the proposed use can reasonably be located elsewhere.
(a)Compliance with Strategic Plan
The respondent has failed to correctly interpret and apply Section 1.3 of the Strategic Plan dealing with the detached housing designation. In particular, but without limitation:
(i)The maintenance of residential amenity on this section of Ashmore Road has not been adhered to by Council;
(ii)The dominant land use along this area of Ashmore Road is not detached housing but rather consists of a large range of non residential development.
(b)Car Parking
The number of on-site car parking spaces is sufficient for the proposed uses on site. In particular, but without limitation:
(i)A substantial proportion of the visitors to the art gallery and coffee shop are local residents who walk to the premises;
(ii)The majority of the Ikebana students are foreign students who arrive by bicycle or public transport, and do not use motor vehicles for transportation.
(c)Amenity
(i)The proposal will not have an adverse impact on the amenity of the surrounding residential area. The amenity of the surrounding area is characterised by commercial or other non residential uses;
(ii)The uses will not result in any intrusive visual or acoustic impacts on any residents in the area;
(iii)The amenity of the vicinity is dominated by the heavy usage of Ashmore Road, and the commercial uses predominating on the opposite side of Ashmore Road.
(d)Objections
The issues raised by the two objections received by the respondent are not valid in that an adverse impact on the residential amenity of the area is alleged. The appellant refers to and relies upon the matters raised in sub-paragraph (d) hereto.”
In support of the application for further disclosure the advocate for the appellant stated that the statement of intent and other provisions of the Planning Scheme, on the case for the appellant, have either been incorrectly applied or no longer bear any resemblance to the reality as a result of the approvals that have been given over the last five or ten years. Accordingly, it will be contended that they should be given very little weight. The respondent, it is said, is relying heavily on those provisions to defeat the appellant’s proposal. The case for the appellant will be that the provisions are either out of date or they have been ignored. The appellant will seek to lead evidence of the nature of the other approvals that have been granted along this strip of Ashmore Road.
The obligation of discovery was considered by Skoien D.C.J. (as he then was) sitting as a Judge of the Local Government Court in Property Estates Limited v Brisbane City Council & Othr [1987] QPLR 283 at 283-284. His Honour stated:-
“The obligation of discovery comprises all documents which “relate” to the issues in the case (unless a ground of privilege exists) including those documents which would not be admissible in evidence as being relevant to the issues; Ferguson v Mackaness Produce Pty.Ltd. (1970) 2 N.S.W.L.R. 66. In the classic statement of Brett L.J. in Compagnie Financiere du Pacifique v Peruvian Guana Co. (1882) 11 Q.B.D. 55 at 62-63:
“… the documents to be produced are not confined to those which would be evidence either to prove or to disprove any matter in question in the action……. The doctrine seems to me to go much further than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action which would not only be evidence upon any issue but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put the words ‘either directly or indirectly’ because as it seems to me a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of those two consequences.”
In my view, it is clear that the documents of which discovery is sought in paragraphs 1, 2, 3, 5, 6 and 7, fall within the principles expressed by Brett L.J. I am, however, unable to see that the documents referred to in paragraph 4 of the appellants solicitor’s letter of 9 February 2000 fall within these principles. My views in this regard in relation to the Anglican Church at Robina are not dependant upon the notice of appeal being amended so as to raise as an issue in the instant appeals this particular development. Accordingly, I decline to order disclosure in relation to all files relating to development approval in respect of the Anglican Church of Australia, Robina Village, Commerce Drive, Robina.
The Anglican Church at Robina is situated within that development which is subject to the provisions of the Local Government (Robina Central Planning Agreement) Act 1992. This legislation regulates the development in that area in a manner akin to a Development Control Plan. Any conditions relating to car parking with respect to the Church are therefore unlikely to be of direct relevance to the question of car parking facilities with the subject site.
It was contended on behalf of the respondent that to order further disclosure would offend against the “precedent principle” which this Court has adopted. I have referred to the decision in Henry v Council of the City of Gold Coast [1998] QPELR 341 where it was accepted that each planning application must be considered on its own merits and facts and circumstances, rather than where a particular development proposal would create a significant precedent for the locality. The decision in Henry in this regard followed what Quirk D.C.J. had earlier expressed in the case of Georgeson & Cotton v The Council of the Shire of Caboolture & Ors (1996) QPELR 12 at 14:
“The ‘precedent’ argument is one which is often raised in this jurisdiction. As is pointed out repeatedly, every applicant is entitled to have his application determined in the light of its own facts. If it is demonstrated that an application is worthy of approval, then that is the end of the matter.”
In my opinion, rather than the respondent suggesting that a precedent will be created for the locality the appellant in this case intends to argue that the precedent has already been established as a result of previous decisions of the respondent. I cannot see that anything said in Georgeson or Henry with respect to the precedent argument should result in the appellant being denied further disclosure as sought in this case.
Mr Knox, who appeared on behalf of the respondent on this application, also raised concerns as to the oppressive and time-consuming consequences that would flow from an order for further discovery being made as sought by the appellant. I note, however, that the appellant’s solicitors have indicated in their request that it is not necessary for the respondents list to separately enumerate and identify each document contained on each file disclosed. It is sufficient to identify each file.
The solicitors for the appellant do, however, require separate enumeration and identification of the documents contained in the files dealing with the MCU application and enforcement notice under appeal. In my opinion, it should not be required of the respondent to separately enumerate and identify each document on the files dealing with the MCU application. It is not unreasonable, however, to require such action with respect to the documents on the files relating to the enforcement notice under appeal.
In the result then, I make the following order:-
That the respondent Council on or before 4 p.m. on 29 February 2000 make disclosure by way of supplementary list of the following documents or classes of documents –
(a)All files relating to the current development approvals in respect of all properties situated on the southern side of Ashmore Road between the intersection of Southport – Burleigh Road (east) and the intersection of Campbell Street/Racecourse Road (west). The real property descriptions in respect to these properties are as follows:-
RPDUse
Lot 12 RP 103567 Jewelry Studio
Lot 14 RP 103567 Architectural Office
Lot 16 RP 103567 Cosmetic Surgery
Lot 17 RP 103567 Unspecified Business (no signage)
Lot 18 RP 103567 Real Estate Agency
Lot 20 RP 103567 Interior Design Studio
Lot 21 RP 103567 Chiropractor
Lot 22 RP 103567 Subject Site
Lot9 RP 136870 Therapy Clinic
Lot 10 RP 136870 Ceramic/Terra Cotta Tile Studio
Lot 387 RP 134770 Surgery
Lot 386 RP 134770 Acupuncture Clinic
Lot 385 RP 134770 Dermatologist
Lot 384 RP 134770 Dentist Surgery
Lot 1 RP 136293 Obstetrician/Gynaecologist
Lot 2 RP 134770 Solicitors Office
Lot 3 RP 134770 Building Development Company
Lot 6 RP 134770 Chiropractor
Lot 7 RP 134770 Unspecified Business (Interior Design)
(b)All files relating to the initial development approval for the Harvey Norman Centre at 31 Ashmore Road.
(c)All files relating to the MCU extension of Harvey Norman Showroom Centre, lodged in May 1999.
(d)All files relating to the appellant’s 1997 consent use application in respect of the subject premises.
(e)All files relating to previous development approvals issued in respect of the subject premises.
(f)All files relating to the building application in respect of the subject premises, lodged in 1997 by Konrad Rustemeyer & Associates.
In the circumstances it seems unnecessary to order that the appellant be at liberty to amend the notice of appeal.
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