Jeteld Pty Ltd v Toowoomba Regional Council - [2009] QPEC 64

[2009] QPEC 64

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Appeal No 3263 of 2008

JETELD PTY LTD ACN 009 904 456	Applicant
and
TOOWOOMBA REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 24/07/2009

JUDGMENT

CATCHWORDS: Integrated Planning Act 1997 s 4.1.23(2)(f) - Uniform Civil Procedure Rules - application by appellant developer in conditions appeal to amend notice of appeal to cover additional condition - whether appellant should pay costs - whether UCPR provisions available to support a costs order

HIS HONOUR: There is an application before the Court by the

appellant, the developer, to amend its Notice of Appeal.

Although the original Notice of Appeal, which is against

conditions of the Council approval of a 99 lot residential

subdivision raises other issues, the Court's told that what

remains contentious boils down to what the appellant may be

required to construct at its cost by way of external water supply works to effect a connection to the Council's water reticulation system. The appellant was hopeful that, for the purpose of providing reconnection for its subdivision, a pipe of 150 millimetres diameter would be sufficient. For obvious

reasons, the developer was resistant to Council's suggestions

- or requirements - that a 350 millimetre diameter facility or

even a 450 millimetre diameter facility was appropriate, the

cost of which was bound to be higher.

At a meeting of experts, being Dr Johnson engaged by the

appellant, and Mr Gray engaged by the Council, it appears to

have been agreed that, to service the proposed residential

estate, a 250 millimetre pipe would be appropriate. That

apparent concession by Dr Johnson raises issues of its own and

Mr Connor circumspectly suggests that the apparent agreement

may have been based on some erroneous calculation.

There's placed before the Court-----

MR CONNOR: Excuse me, your Honour. Just - because I'm very
sensitive-----

HIS HONOUR: Yes.

MR CONNOR: -----I think what I said - I gave the example of
the calculation.

HIS HONOUR: Yes.

MR CONNOR: But I think the best I'd like to put it was is that there may be an error.

HIS HONOUR: I'll ask the reporters to transcribe your
intervention.

MR CONNOR: Thank you, your Honour.

HIS HONOUR: It's not for the first time you've been very
careful or subtle, Mr Connor, but-----

MR CONNOR: Thank you.

HIS HONOUR: -----I don't want to put words in your mouth you
didn't use.

There is placed before the Court an e-mail of Dr Johnson's,

of very recent date, indicating a view that a 200 millimetre main might be appropriate. Mr Connor doesn't wish to put matters any higher than possibilities at this stage. He wants the opportunity to pursue things further, with a view to possibly filing an application in the court which might seek relief against constraints on what experts may present in light of existing directions. If there is such an application, it should be returnable on the date to which this appeal is adjourned.

MR TRANTER: Is that for mention, your Honour, or for hearing?

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeteld Pty Ltd v Toowoomba Regional Council

Details

AGLC: Jeteld Pty Ltd v Toowoomba Regional Council [2009] QPEC 64
Case: [2009] QPEC 64
Decision Date: 24 July 2009

CaseChat Overview and Summary

In the matter of Jeteld Pty Ltd v Toowoomba Regional Council, the Planning and Environment Court considered an application by the appellant, Jeteld Pty Ltd, to amend its Notice of Appeal to include additional conditions. The appeal was against conditions imposed by the respondent, Toowoomba Regional Council, in relation to a 99-lot residential subdivision. The primary dispute centred on the external water supply works required to connect to the Council's water reticulation system, specifically the diameter of the pipe needed to service the subdivision.

The legal issues before the court included whether the appellant should be allowed to amend its Notice of Appeal to cover additional conditions and whether the appellant should bear the costs associated with the application to amend the Notice of Appeal. The court was required to determine if the Uniform Civil Procedure Rules (UCPR) could be used to support a costs order under the Integrated Planning Act 1997.

The court found that it was appropriate to allow the amendment of the Notice of Appeal to facilitate the parties presenting their best case. The judge was satisfied that the amendment should be permitted as it was in the early phase of the appeal process. However, the court considered the issue of costs, noting that it was generally unfortunate to have costs reserved but less so if the same judge would determine the matter. The court ruled that the UCPR could not override the "no costs" regime established by section 4.1.23 of the Integrated Planning Act 1997. The court held that the term "material" in the statute was not limited to evidence and could include other facts and information. The court found that the appellant's introduction of new material by adding to the Notice of Appeal warranted the imposition of costs. The appellant was ordered to pay the respondent's costs of the application to amend the Notice of Appeal. The court also granted leave for a further meeting between the experts to discuss the issues and set an adjournment date.

Orders