Hartley v Isaac Regional Council Ors

[2011] QPEC 109

[2011] QPEC 109

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3498 of 2009

EVAN JOHN HARTLEY	Appellant
and
ISAAC REGIONAL COUNCIL & ORS	Respondent

BRISBANE

..DATE 22/07/2011

ORDER

CATCHWORDS

Developer's appeal against refusal of a commercial development - with changed legal representation, appellant applies for vacating of trial dates only 10 days away - respondent opposed - court orders mediation at appellant's request, adjourns application for a few days until immediately after the meditation - changes to development proposed.
HIS HONOUR:  I will direct the parties to participate in mediation before the Registrar on the morning of 26 July 2011 and adjourn to the same date but following the mediation the appellant's opposed application filed 13 July 2011 for the vacating of trial dates which currently are 1, 2 and 3 August 2011.  Costs reserved.

This is a difficult decision. The court is reminded of the factors to be taken into account by Mr Morzone, counsel for the Isaac Regional Council, which is the respondent in the appeal. Those include the increased recognition given to the orderly disposal of a court's business in Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27.

The development application which the Council refused is for a significant commercial development at Coppabella to include a service station, medical centre and other commercial components.  The Council contends there is no need for this proposal and also that it conflicts with planning provisions regarding centres.

The appeal has had a chequered history.  It goes back to 2009.  It has been previously allocated to sittings and taken out of them.  When the appellant was differently represented, and perhaps to an extent representing himself, every indication was given that the hearing dates of 1, 2 and 3 August were appropriate and that the appellant would be ready.

New representation has been arranged.  I accept from Dr Crane that his firm has had difficulty in getting access to documents that are needed.  Apparently, arrangements are yet to be made for him to meet with the experts in planning and need fields who have already participated in preparing joint reports with the council's experts.

Factors favouring the granting of an adjournment include that it is sought by the developer rather than by a submitter, a submitter who is a commercial rival, in particular, with an interest in delaying a proposal if it cannot be defeated.

My appreciation of the state of the lists is that it may well be that if the hearing the week after next goes off - and unfortunately it cannot be relisted later in the week although the Judge is available.  It may be possible to deal with it this year.  However Mr Morzone expresses concern that it may have to go off to next year when those involved might have to do most of their preparation again or at least a great deal of revision.

I am reluctant at this stage to adjourn the hearing, particularly as, on the appellant's side, there is an interest expressed in mediation which, as it happens, the Registrar can participate in next Tuesday.  From Mr Morzone's point of view, it is news to hear from Dr Crane that the appellant is disposed to remove from his proposal the medical centre component which may be of particular concern to the Council given the apparent imminence of another such centre being developed in the general vicinity.  Mr Morzone was not particularly enthusiastic about the mediation but indicated his client's willingness to be involved in it.  I appreciate it is short notice for all concerned but the opportunity ought be availed of, I think.  I will be available on the day to consider again the application for adjournment of the hearing of the appeal should that be necessary after the mediation exercise.

Mr Morzone has fairly conceded that the circumstances are ones in which the Council could be compensated in costs for what is lost if the hearing for which preparations are so well advanced has to be delayed.

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NOTE:  The court was advised on 26 July 2011 that Mediation on that day had produces a resolution of the appeal.