Handley v Brisbane City Council; Castlemaine Perkins Pty Ltd v Brisbane City Council

[2010] QPEC 120

[2010] QPEC 120

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 507 of 2009

ELIZABETH HANDLEY	Appellants
and
BRISBANE CITY COUNCIL	Respondent
and
FKP COMMERCIAL DEVELOPMENTS PTY LTD	Co-Respondent

and

DEPARTMENT OF ENVIRONMENT
AND RESOURCE MANAGEMENT               Co-Respondent

AND

P & E Appeal No 509 of 2009

CASTLEMAINE PERKINS PTY LIMITED       Appellant

and

BRISBANE CITY COUNCIL                 Respondent

and

FKP COMMERCIAL DEVELOPMENTS PTY LTD    Co-Respondent

BRISBANE

..DATE 23/04/2010

..DAY 1

ORDER

CATCHWORDS

Planning and Environment Court Rules 2010, r 19
Uniform Civil Procedure Rules 1999

Co-respondent developer, having the onus in the appeal, failed to apply for directions as required - appellant submitter submits (on registrar's reference) that the appeal should be allowed - hearing treated as an application for directions, appeal adjourned to await (with others) a Ministerial determination
 

HIS HONOUR:  I adjourn both appeals for mention on the 20th of August 2010. 

What's been contentious this morning is the application by Ms Handley, the appellant in 507 of 2009, for an order that her adverse submitter appeal against a Council approval of the 21st of January 2009 be allowed and the development application be refused.

No 509 of 2009 is an appeal against the same Council decision.  Both appeals commenced on the 24th of February 2009.  Ms Handley is on her own in seeking the outcome she does, the appellant in 509 of 2009 and the Council supporting the co-respondent developer's submission that the matter ought to be adjourned for four months.

The purpose of that adjournment is to await developments consequent upon the Minister’s having called in a subsequent development application by the co-respondent.  That application became the subject of a development approval granted by the Council on the 16th of March 2010, which is the subject of separate appeals.

I may have this wrong, however; the impression one gets is that the developer, represented by Mr Lilywhite, wishes to have the option of proceeding on the 2009 approval which is for a 30-storey residential tower close to Milton Railway Station and a 10-storey tower above the station or, by reference to the 2010 approval, constructing the 30-storey tower only.

Mr Lilywhite confirms that there's a fear that may or may not have substance that proceeding on the first approval might commit his client to construct both buildings.

Ms Handley has told the court that it's at the urging of Mr Lilywhite's client that the Minister has called the second development application in.  His decision will therefore determine its fate.  The purpose of the four-month adjournment is to await events in that regard.  It's too late for the Minister to call in the original development application.

Ms Handley is able to point to non-compliance with the Planning & Environment Court Rules 2010 on the co-respondent developer's part.  By Rule 19(3), as the party with the onus in the proceeding, the co-respondent was required within three months of commencement of the 2009 appeals to apply to the court for an order for directions.  That hasn't happened. 

The court's interest has been stirred by action on the part of the Registrar who has detected the lack of action. The rules provide no guidance as to the consequences of non-compliance. Reference to the Uniform Civil Procedure Rules, to which recourse may be had in this court, may authorise the striking out of a proceeding for want of prosecution if the rules aren't complied with.

There are some provisions in the UCPR which authorise the granting of judgment against a respondent or defendant in a proceeding on the basis of non-compliance with the rules or orders. In my experience, Judges are understandably reluctant to grant a moving party final relief against a defendant or respondent on the basis of that non-compliance in such respects. Striking out a delinquent plaintiff or applicant is a different case: a strong line may well be justified.

The present co-respondent's position is perhaps somewhere in the middle, given that under the Integrated Planning Act it does bear the onus of establishing that its development application ought to be approved.

In the absence of any precedent or other legal basis for proceeding in the draconian way in which Ms Handley proposes, I am not prepared to do it.  There is a general reluctance among all parties to have to devote trouble and money to this proceeding until the situation is clarified by a Ministerial determination.  That seems to me entirely sensible.  The matters were listed before Judge Everson two weeks ago (at the insistence of the Registrar), who adjourned them until today to await developments.  In that two weeks the Minister has exercised his power to call in.  The sensible thing for the court to do is to treat this application as the one seeking an order or directions contemplated in rule 19.

The appropriate direction in the circumstances is to adjourn each appeal for mention on the 20th of August 2010.

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