Harridan Pty Ltd v Redland City Council

[2022] QPEC 55

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Harridan Pty Ltd v Redland City Council [2022] QPEC 55

PARTIES:

Harridan Pty Ltd
(appellant)

v

Redland City Council
(respondent)

FILE NO/S:

1112 of 22

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

4 November 2022 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

2, 4 November 2022

JUDGE:

Rackemann DCJ

ORDER:

Order as per amended draft – the respondent was given leave to nominate an expert in the field of visual amenity

CATCHWORDS:

PLANNING AND ENVIRONMENT – DIRECTIONS – REQUEST TO NOMINATE AN ADDITIONAL EXPERT LATE – where failure to nominate within time was deliberate – where material in support was deficient but later supplemented to provide bona fide explanation for change of attitude – where permitting the late notification would not cause prejudice or compromise efficient disposition of the case

COUNSEL:

A O’Dwyer for the applicant

M Rodgers for the respondent

M Soden-Taylor for the co-respondent by election

SOLICITORS:

Mullins Lawyers for the applicant

Redland City Council Legal Division for the respondent

McInnes Wilson Lawyers for the co-respondent

1. This is a matter in which the timetable, in terms of the directions for the matter to proceed to trial, has to be reset.  There is an agreement between the parties in relation to most aspects of the timetable and, indeed, on the end point of the timetable.  The disagreement is as to whether there should be an additional step which gives the council the opportunity to nominate an expert in the field of visual amenity and requires that expert, together with the expert that had already been nominated in that field by the appellant, to produce a joint report.  It should be noted that the addition of those matters would not disturb the timetable otherwise or delay the hearing.

1. The solicitor for the appellant fairly acknowledged that it would result in no prejudice to his client.  It was submitted by him, however, that the respondent had not shown a sufficient reason to justify the Court in granting it the indulgence of the late nomination of an additional expert.  The respondent’s request was initially supported by an affidavit of a solicitor in the employ of the council.  The kindest thing that can be said about that affidavit is that it was deficient. 

1. The hearing of the application was adjourned to enable the respondent to obtain a further affidavit from that solicitor, to give a more detailed explanation of the reasons for the request for the indulgence.  The further affidavit confirmed that the decision not to notify a visual amenity expert was a conscious decision made by her and the appeals planner within the employ of the council.  It was made in the knowledge that visual amenity was an issue in the appeal.  It was made on the basis of their view that the issue could be covered by other experts upon which reliance would be placed, including a town planner. 

1. It would appear that that decision was made without consultation with the planner that the respondent had retained or proposed to retain.  That was a somewhat cavalier approach.  The decision not to notify a visual amenity expert was one which was reconfirmed in the mind of the solicitor on a number of occasions thereafter.  Things changed, however, as a result of a conference which was held with counsel and with the nominated town planning expert as well as with the solicitor and the appeals planner prior to the commencement upon the town planning joint report process. 

1. It was at that meeting and through discussions with the town planning expert, that concern arose that the nominated experts may not be able to sufficiently deal with the visual amenity issue and that the council ought to have notified a visual amenity expert.  At that stage, however, the council’s solicitor was concerned that the late notification of a new expert would disrupt the timetable then in force.  When soon thereafter it became apparent that, for other reasons, the timetable would need to be recast, the respondent solicitor decided to request the opportunity to notify a visual amenity expert, as it should have done from the outset.

1. I accept the honesty of the explanation given in the most recent affidavit.  I accept that it provides a bona fide explanation for the respondent’s change of heart in relation to a desire to call a visual amenity expert.  The predicament that the council finds itself in is, of course, of its own making and because of a failure to properly ensure, at an earlier stage, that the experts it had appointed were, indeed, able to deal with all of the issues.  If the late notification, at this stage, would have a compromising effect upon the efficient disposition of the case, I would have been loath to grant the respondent the indulgence.  Given that that is not the case, however, I am prepared to accede to the request.