Hogan v. Redcliffe City Council

[2006] QPEC 26

[2006] QPEC 026

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No BD1324 of 2004

TERTIA HOGAN  Appellant

and

REDCLIFFE CITY COUNCIL  Respondent

and

SHARON SPYKES AND ANDRE BAX  Co-Respondent

BRISBANE

..DATE 17/03/2006

ORDER

CATCHWORDS:  Submitter appeal by lay appellant acting in person against approval for a house next door - solicitor subsequently engaged - whether (and on what basis) appeal grounds might be amended 11 months after notice of appeal filed.

HIS HONOUR:  The Court has made an order in terms of the initialled draft in circumstances that are not wholly satisfactory.  The appellant, the Court is told, is a school teacher and the co-respondents are, Mr Bittner suggests, ordinary people who have got planning permission from the Redcliffe City Council to build a new house next door to the appellant.

She prepared and filed the notice of appeal herself and subsequently engaged the services of Mr Milne.  He wishes to reconsider what the issues in the appeal ought to be and make provision for amending the issues in his suggested draft order.

Mr Bittner for the co-respondents objects to that on the basis that, after so long a delay in this appeal against the approval which was filed in April last year, his clients ought not to be faced with a change or a substantial change in the case they have to meet.  He suggests that a good deal of work has been done already such as having experts look at the matter in light of the issues as they currently appear.

Mr Milne has given the Court such assurance as he can that the amendments are not going to be as alarming as is feared.  To an extent, he says, he is seeking to come to grips with the provisions of the new Redcliffe Planning Scheme which came into effect late last year.  He suggests that some of the issues in relation to traffic and sewerage in the notice of appeal may go away after he has discussions with his client.  He has gone so far as to honour the spirit of the day by offering Mr Bittner a case of Guinness if the amendments cause any problems.

In the circumstances, I have preferred Mr Milne's suggested draft order over Mr Bittner's which gave the appellant leeway only by way of particularising by further and better particulars the issues identified in paragraph 6 of the Notice of Appeal.  I think it is better to avoid disputes as to whether any further and better particulars forthcoming under such arrangements are really raising new issues.

I am also concerned to avoid the parties having to confront unnecessary costs, as Mr Milne has suggested to the Court that the matter is really quite close to settlement.  Rather than my idea of a more conventional approach of requiring the appellant to come up with an amended Notice of Appeal, instead of that what she should be required to do is provide by the end of the month a proposed amendment to paragraph 6 of the Notice of Appeal identifying the issues in the appeal.

The order as initialled by me goes on to provide that "subject to any order the Court may make on application of the respondent or co-respondent the disputed issues are those identified in accordance with paragraph 2 as particularised by any further and better particulars provided in accordance with the order".

I should make it clear that the purpose of all this is to protect the co-respondents, if they find themselves genuinely embarrassed by having to face a substantially different case, they may seek redress from the Court.

Order as per draft.

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