Lagoon Gardens Pty Ltd v Whitsunday Shire Council

[2006] QPEC 62

[2006] QPEC 062

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P&E Application No 1379 of 2006

LAGOON GARDENS PTY LTD
ACN 112 105 861  Applicant

and

WHITSUNDAY SHIRE COUNCIL  Respondent

and

KUNAPIPI SPRINGS PTY LTD                  First Co-Respondent

and

THE CHIEF EXECUTIVE UNDER THE
TRANSPORT INFRASTRUCTURE ACT 1994 Second Co-Respondent

P&E Appeal No 4420 of 2005

LAGOON GARDENS PTY LTD
ACN 112 105 861  Appellant

and

WHITSUNDAY SHIRE COUNCIL  Respondent

and

KUNAPIPI SPRINGS PTY LTD                  First Co-Respondent

and

STATE OF QUEENSLAND  Second Co-Respondent

BRISBANE

..DATE 26/05/2006

ORDER

CATCHWORDS:  Appeals about competing development proposals ordered to be heard together - applicant's separate appeals against deemed refusal of its own proposal and (as an adverse submitter) against approval of the competing proposal - common ground that there was need for one proposal only

HIS HONOUR:  The main question for the Court to decide today is whether two appeals of Lagoon Gardens Proprietary Limited ought to be heard together.  1379 of 2006 is a new appeal against a deemed refusal of its development application.

The first co-respondent has elected to be a party.  Its development application for a similar development in the local government area is the subject of Lagoon Gardens' appeal,
4420 of 2005.  The appeal there is that of an adverse submitter, the Council having approved Kunapipi Springs' development application which, if it matters, was lodged about three months earlier.

The State of Queensland, by emanations of it representing different concerns, is second co-respondent in both appeals.  In the 2005 appeal the State interest relates to good quality agricultural land.  Kunapipi's site is understood to involve land that has been so categorised.  This aspect looms large in the appellant's challenge to the Council's approval.

The other aspect is one of need.  Both developers appear to assert that there is need for only one of the proposals.  In the present circumstances Lagoon Gardens, not surprisingly, assert that, to the extend that there is a need, it can be met by its proposal, leaving good quality agricultural land available for future generations or perhaps just for the immediate future.

There are other issues to do with hydraulic matters and the like.  The thought at the moment is that the State interest in relation to Lagoon Gardens' proposed development is not particularly pressing.

Mr Houston, for Kunapipi, has asked that no decision be made for a month or so about the two appeals being heard together.  He suggests that it is preferable to wait, in particular, until the Council indicates its broad attitude and the issues it wants to raise in the appeals.

I cannot see the benefit of waiting.  It seems to me self evident that the two appeals ought to be heard together and by the same Judge.  So far as the Court's interests are concerned, this is likely to lead to a saving of Court time and limit to one the occasions for a site inspection.  
There are similar concerns in relation to the bevy of experts likely to be engaged by the active parties. 

If precedent is needed for the Court's determination that the two appeals ought to be heard together I would refer to the Ugarin matter which concerned rival proposals for a shopping centre development and expansion of an existing competitor. 
The litigation in the Court culminated in Ugarin Pty Ltd v Logan City Council [2004] QPELR 392.

The 2006 appeal is relatively new.  I think Mr Gore's proposal that the Council be allowed only a week to formulate not only its attitude but also the issues it wants to raise is too short, notwithstanding that the Council may have had nearly a year to think about the Lagoon Gardens proposal in one way or another.

The Council seeks three weeks for determining on its course as proposed by Mr Houston and I think that is reasonable.  The consequence is that it becomes impractical to hold on to the five days tentatively allocated in the August pool for hearing of the appeal regarding the Kunapipi Springs development.  This means that Mr Gore's alternative pair of draft directions prepared on the basis of a September hearing are appropriate.  Either way the suggestion which the Court adopts is that seven days will be needed for a hearing.  The Court could have made that time available in August.

There will be a review date at the end of June before me which comes before experts the parties may engage will have to travel north to inspect one or both sites and other relevant features of the locality.  It might be worth mentioning the "level playing field approach" that Mr Gore urges on the Court.  That has been adhered to by Senior Judge Skoien who has had to deal with "tit for tat" applications calculated to show that the other developer's application required referral co-ordination and therefore a longer notification period.

One unusual feature of the relief granted by his Honour by reference to section 4.1.5A of the Integrated Planning Act 1997 as part of relieving the developers from having to go through that longer notification was that Kunapipi Springs, which had not lodged an adverse submission in respect of the Lagoon Gardens application, was given leave by his Honour to put in a submission within an extended time. That founds its entitlement to come into the 2006 appeal as a co-respondent.

A timetable set by his Honour has been allowed to slip, when Court of Appeal proceedings were proposed, perhaps instituted; those are now out of the way.  I make orders in each matter which Mr Gore has undertaken to prepare in consultation with Mr Houston and the Council's representative, who has not had a lot to say today, apart from asking for three weeks.  The direction will get the issues identified and any request for particulars of them brought before the 30th of June mention.

For the moment a seven day hearing in the September pool is contemplated.  Mr Houston, at least, has foreshadowed that the matters may have to go off until later.  So, you should prepare the orders for initialling, Mr Gore.

-----