Kelly Consolidated Pty Ltd v Ipswich City Council

[2009] QPEC 126

[2009] QPEC 126

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2846 of 2009

KELLY CONSOLIDATED PTY LTD	Applicant
and
IPSWICH CITY COUNCIL	Respondent
and
CHIEF EXECTUIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS	Co-Respondent

BRISBANE

..DATE 23/10/2009

ORDER

CATCHWORDS
Integrated Planning Act 1997 s 3.5.33

Directions made for conduct of application - application seeks change of development conditions set by court precluding sale of lots in a subdivision until completion of certain roadworks - developer wishes to implement "stages 1, 2 and 3" - condition was imposed at behest of Council in an appeal in which Main Roads Department (a concurrence agency which refrained from imposing conditions) was inactive - Department now wishes to be able to argue for retention of condition (which Council is willing to relax) - developer foreshadows application to exclude Department as a party - Department loathe to incur substantial costs in that situation

HIS HONOUR:  This is a fight about directions.  The applicant
developer is proceeding with a large subdivision at Yamanto
ultimately to contain in excess of 200 lots under the
authority of development approval constituted by an order of
the court in May 2008.

The parties were the same as those in the present application
which seeks under section 3.5.33 of the Integrated Planning
Act 1997 to have conditions incorporated in the court's order
changed.  The condition of concern provides that no plan of
survey shall be sealed until such time as roadworks described
as the "Kerners Road deviation" have been constructed.  The
council is responsible for construction of that deviation.

Mr Connor, for the applicant, tells the court he understands
that things are well advanced so far as allocation of funds
and the like is concerned.  He is anxious to get reliable
information from the council as to progress.  If that is
sufficiently heartening, it may affect the attitude of the
co-respondent.

Mr Connor's client has been disappointed at progress in
relation to the Kerners Road deviation to date.  For perfectly
understandable commercial reasons, it doesn't wish to commit
the large amounts of money that would be required for
development of its subdivision until it has some clear idea of
when it will be able to sell lots and generate a cashflow.

The council are sympathetic to the application which seeks
relaxation of the condition so that it will allow the first
three stages comprising 81 lots to go ahead.

The difficulty in the way of the court's dealing with the
matter almost immediately is the co-respondent's stance.  The
co-respondent wants some time to formulate an attitude to the
application which was filed only on 2 October this year.

The situation is unusual in that the co-respondent was
inactive in the appeal.  The relevant condition was imposed by
the council.  It could have been imposed by the co-respondent,
which has standing in the matter, because part of the site
abuts the Centenary Highway extension.  Mr Connor appeared to me to be asserting that the co-respondent really had no business intervening now, potentially in defence of the
relevant condition, it being one imposed by the council, in
circumstances where the co-respondent has, as a concurrence
agency, deliberately refrained from suggesting a condition.
Mr Connor nevertheless took the cautious approach of joining the co-respondent in this application which he correctly says
nothing in the Integrated Planning Act appears to require him
to do.

My own approach, for what it is worth, is that prima facie
parties to the proceeding in the court which results in a
development approval are appropriate parties in a separate
application designed to change it.  There will, of course, be
many exceptional cases.  I have been involved in some myself.

The co-respondent's department has the mandate to
ensure the safe and efficient operation of the State
controlled roads system, which ought to be respected.  In my view, the court ought to be cautious about overriding the
department's views, although I have recently been persuaded in
an appeal that that was the appropriate outcome: Keith L Noble & Sons Pty Ltd v Caboolture Shire Council [2009] QPEC 49.

As it happens, the considerations that are relevant apply to
parts of the road system, State controlled and other, remote
from the site and from the Centenary Highway extension.  The
condition appears to have been designed to divert traffic
moving to and from the Warwick Road via Kerners Road, North
Deebing Creek Road and Ash Street which provide the link from
the subject site to Warwick Road, far to the north.  The link
is accessed by the existing overpass constructed across the
Cunningham Highway.  The Kerners Road deviation represents a
shortcut, indeed the shortest side of what's effectively as
isosceles triangle.

Mr Connor, obligingly, stated that I was close to the mark in
hypothesising that there might have been objections from local
residents in the three streets I've named to increased local
traffic generated by the development.

Mr Connor has foreshadowed that an application might be
brought to have the co-respondent excluded from participation
in this application.  The Court's not asked to resolve any such question today.  The mere posing of it concerns the
co-respondent in a relevant way.  There is no enthusiasm for
directions which oblige the co-respondent to engage experts
and commit them to activities beyond the point of meeting and
preparing a joint report to the preparation of separate
points.

Ms Brien indicates her client doesn't wish to be at risk
of wasting expenditure should her client be excluded from
further participation in the proceeding.

The court is pleased to hear that the department has appointed
a traffic consultant and has no difficulty about the relevant
experts, including that consultant, meeting and preparing a
joint report.
The court's made an order, the terms of which are as
follows:

Upon the Court being satisfied that there has been
     compliance with the provisions of the Integrated Planning
     Act 1997 with respect to service of the originating
     application -

It is ordered that:

(1) by 4 November 2009 the co-respondent and respondent
     serve on the appellant a notice setting out its position
     with respect to the application to change conditions, the
     respondent to set out progress made and anticipated in
     construction of the Kerners Road deviation to the best of
     its ability;

(2) by 4 November 2009 any party that opposes the changes
     sought to conditions must serve on the parties a list of
     disputed issues about the proposed changed condition;

(3) the grounds of dispute in this application are those
     identified in the Originating Application and identified
     pursuant to paragraph 2 herein;

(4) by 6 November 2009 the parties must serve a list
     specifying the name and field of expertise of each expert
     intended to be called by them to give evidence at the
     hearing of the application;
     (5) by 12 November 2009 each of the experts identified
     must meet with their corresponding expert to discuss the
     disputed issues relevant to their field of expertise with
     a view to settling or limiting the disputed issues in the
     application and prepare a joint report;

(6) the matter be set down for mention on 13 November
     2009;

(7) the appeal be allocated two days for a hearing in
     the March 2010 pool with liberty to apply for an earlier
     hearing if Court time becomes available;

(8) any application by the applicant to have the
     co-respondent excluded from the proceeding must be filed
     and served by 6 November 2009;

(9) the parties have liberty to apply on the giving of
     two business days' notice.

The terms are an amalgam of Ms Brien's proposed draft and
Mr Connor's, the latter in respect of allocation to a 2010
pool, and seeking to require provision of information from the
council.

It is a matter of regret that the February pool has been
closed off at this early stage.  I have made provision for the
application to come on sooner should court time become available.
The applicant, I think I have indicated, in March 2008 failed
to get authority to get its development underway to the point
of selling some allotments.  That was supposedly attributed to
a rosy view being taken of when the Kerners Road deviation
might be in operation.

The applicant has a general and valid commercial concern which
the Court ought to accommodate as well as it can.  It is
important, given mandate referred to, that the co-respondent have adequate time to formulate an attitude, but I think the court should be astute to do what it can to ensure that, having gained the council's cooperation, the applicant isn't held up any more than is absolutely necessary.

Order as per initialled draft.

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