Meurling v Brisbane City Council; Harker v Brisbane City Council
[2009] QPEC 111
•02/10/2009
[2009] QPEC 111
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 3462 of 2008
| ROSANNE MONICA MEURLING and DAVID WILLIAM MARKS | APPELLANTS |
| and | |
| BRISBANE CITY COUNCIL and | RESPONDENT |
TONG TOWN PLANNING & DEVELOPMENT
SERVICES PTY LTD ACN 109 538 230
(TRADING AS TONG TOWN PLANNING &
DEVELOPMENT SERVICES) AND TMS 01
PTY LTD ACN 107 920 749 AND BELLGRACE
INVESTMENTS PTY LTD ACN 099 629 071 CO-RESPONDENTS
P & E Appeal No 3488 of 2008
BRADLEY JOHN HARKER and
KRISTIE MAREE HARKER APPELLANTS
and
BRISBANE CITY COUNCIL RESPONDENT
AND
TONG TOWN PLANNING & DEVELOPMENT
SERVICES PTY LTD ACN 109 538 230
(TRADING AS TONG TOWN PLANNING &
DEVELOPMENT SERVICES) AND TMS 01
PTY LTD ACN 107 920 749 AND BELLGRACE
INVESTMENTS PTY LTD ACN 099 629 071 CO-RESPONDENTS
BRISBANE
..DATE 02/10/2009
ORDER
CATCHWORDS:
Appeals of adverse submitters (couples who were neighbours on different boundaries of site) ordered to be heard together - one couple agreed with developer on changes to the proposal to be put to respondent Council and applied to be excused from any further active role - opposition from the other appellants (concerned at their being excluded from the negotiations) - directions made for further conduct of their appeal, when developer sought adjournment of hearing
HIS HONOUR: Order as per initialled draft.
The purpose of the order is to relieve the appellants in Appeal 3462 of 2008 from playing any further active role. The appeal in consequence of earlier orders is to be heard with
Mr Harker's appeal, which is 3488 of 2008. Both appeals relate to the same development.
In the former discussions with the co-respondent developer have alleviated the appellants' concerns. Mr Harker, who represents himself and the other appellant in the latter appeal is understandably concerned at being left on his own in opposition to the developers. Further, he feels, and I accept genuinely, that he has been excluded from the negotiations mentioned which have led to some revision of the co-respondents' development plans.
His concerns about the proposal are unlikely to be exactly the same as those of the appellants in 3462 of 2008. There is a theoretical possibility that changes agreed to by the participants in that appeal may make the proposal even less acceptable from his point of view; they may be neutral or even favourable. Mr Harker does not know what they are.
There was a suggestion from the Bar table that his "exclusion" from the negotiations mentioned might have been attributable to his not having engaged experts. He responded to that suggestion by telling the Court that he did have experts, at least now.
I am unaware of any basis on which the Court is able to compel appellants who don't wish to go ahead to do so. Their interests, which is protected by the draft order Mr Connor handed up, are now limited to being informed of any proposed changes to the development application or to conditions and of any final orders proposed for the resolution of Mr Harker's appeal.
I have endeavoured to make it clear to Mr Harker that the dependency of his submitter appeal effectively precludes the co-respondent's obtaining any development approval which may be acted upon. He is entitled to a hearing on the merits at which he is likely to have the sole responsibility for meeting the case which the practice of the Court requires the developer to present to establish that its application ought to be approved, or what the conditions should be. It may well be that there are ways of Mr Harker turning to useful account work that has been done by experts engaged by the other appellants, but he will have to do that, if he can, as the active party.
I have indicated to him, the circumstances being ones in which Mr Connor indicated that he or his firm will be appearing to advise the trial Judge in the November sittings of today's order, that if he is advised that there is any possibility of keeping the reluctant appellants still in the matter, he may be able to urge on the trial Judge that today's directions ought to be changed. The trial Judge is only likely to entertain an application in that regard if Mr Harker has given reasonable notice of it.
...
MR HOUSTON: Your Honour hasn't dealt with Mr Harker's appeal, or the orders in that appeal. Might I hand up the draft that we propose and it may assist in ameliorating many of the concerns that Mr Harker has raised that your Honour seems to share.
HIS HONOUR: Well, I don't know anything about it. I am doing it all as a hypothetical, Mr Houston.
MR HOUSTON: I understand, your Honour. The two matters were listed to be heard together as your Honour is aware. My clients proceeded to negotiate. There was a mediation held on the 9th of June. There is a mediation certificate in respect of Mr Harker which said that the mediation failed to resolve the dispute between the parties...
There was no such mediation certificate in respect of the Meurling and Marks appeal (3462 of 2008)and that proceeded to negotiation which led to the outcome which has occurred and which Mr Connor has explained to you and which your Honour sees in his affidavit. There is no attempt to cut Mr Harker or his wife out of the process. We proceeded or my client proceeded to resolve those matters that could be resolved with the other appellants.
HIS HONOUR: Nr Harker may not feel this way, but those of us in the business will know that your client wouldn't imagine for a moment that it could exclude him.
MR HOUSTON: My client doesn’t intend to exclude him at all and quite to the contrary what the order suggests is that the matter be taken out of the November sittings, be taken off the call-over list, it be adjourned for a mention in a week's time. That is to allow the council to prepare what is, in effect, a draft amended approval package which will contain the conditions, if council finds them acceptable, and that is the starting point. Council needs some time to consider what has been addressed between my client and the Meurling appellants. If they find that acceptable they will prepare a revised conditions package. We wish that to go to Mr Harker, he have time to consider it, and to consider whether that impacts upon the concerns that he has in his appeal.
We suggested in correspondence that we will deal with the matters in a without prejudice conference if Mr Harker was minded to do that. We're trying to include Mr Harker, now that w have dealt with the other issues in a very lengthy notice of appeal in the Meurling appeal, some 32 pages, we have dealt with those issues, we have reached resolution, we will now move on to deal with Mr Harker.
And we're proposing that that be done on a basis that allows Mr Harker time to consider what has been agreed between the other parties and to deal with any other concerns that he has. And that is what the order we seek this morning intends to address.
We would come back next Thursday on that basis and seek further directions which could include directions that Mr Harker identify - and we put this in correspondence to him yesterday.
HIS HONOUR: So this new review will be before the call-over?
MR HOUSTON: It would be before it but we wish to take the matter off the list for several reasons, one to allow time for the council to formulate its positions on the conditions package. Secondly because - and to clarify the position about the experts - Mr Connor made a comment about Mr Harker's experts. Mr Harker notified a town planner who participated in the joint meeting process but as of the 30th of September - reports were due to be exchanged on the 25th. As of the 30th of September Mr Harker sent an e-mail saying that he did not intend to call his town planner but he required my client's three experts to be available for cross-examination.
If his position has changed from there, he is welcome to say so now, but our understanding is he is not calling his town planner and his town planner is not preparing a report.
The other reason for seeking adjournment is that so our three experts can take into account what is effectively the revised approvals package and the implications of that package for matters that have been raised by Mr Harker. So we say that is an appropriate basis on which to proceed in the way we have suggested in the draft order.
HIS HONOUR: Has Mr Harker got a copy of your draft?
MR HOUSTON: He has been given a copy of the draft order, yes.
HIS HONOUR: Well, it is a bit hard to assimilate all this but‑‑‑‑‑
APPELLANT B J HARKER: Yes, it is. I understand.
HIS HONOUR: ‑‑‑‑‑the effect of it is to take the - take your appeal out of the November pool.
APPELLANT B J HARKER: Yes, my concerns are that by enlisting these changes with the council, et cetera, I feel that it compromises the existing work that I have invested in with my experts and the experts already that are on the case, et cetera.
HIS HONOUR: Of course, it does. If they're looking at revised plans they're going to have to think about it all over again.
APPELLANT B J HARKER: So I therefore object to that. I think it is too late. They haven't involved me in the process whatsoever. There has been no invitation to involve me in the process of ameliorating my concerns.
HIS HONOUR: But you've got that invitation now.
APPELLANT B J HARKER: I received that invitation and I object to the change. I am happy to proceed with the Court in as per the order.
HIS HONOUR: You're saying you don't want to talk about it, you just want to have the hearing in Court.
APPELLANT B J HARKER: I don't want to be placed in a position where I have to bring on additional expert witnesses to deal with these proposals that have been put up to council that only ameliorate the concerns of the other party.
HIS HONOUR: Is this all about neighbours in a residential area?
APPELLANT B J HARKER: Correct, yes, your Honour.
HIS HONOUR: So it is the developer's house - property in the middle, you're on one side and‑‑‑‑‑
APPELLANT B J HARKER: It is looking at units facing into the houses.
HIS HONOUR: Are you an adjoining neighbour?
APPELLANT B J HARKER: I am a house, yes, a house resident neighbour, yes.
HIS HONOUR: Sharing a boundary and are the other appellants adjoining neighbours too?
APPELLANT B J HARKER: There is only one other appellant.
HIS HONOUR: Well - yes, but there are two of them in one appeal.
APPELLANT B J HARKER: There is two. There are three other parties that wish to be non-expert witnesses who are residents as well and they are not appellants.
HIS HONOUR: Meurling and Marks are neighbours too?
APPELLANT B J HARKER: Yes, but the situation is that the proposals that I feel which haven't been revealed to me that they are going to put forward to council are only there to ameliorate the concerns of the other party and therefore‑‑‑‑‑
HIS HONOUR: I can understand that. You may say they are silver-tongued people who will talk the council around. You seem to be saying that you don't want them having secret discussions with the council‑‑‑‑‑
APPELLANT B J HARKER: No.
HIS HONOUR: ‑‑‑‑‑behind your back.
APPELLANT B J HARKER: No, I don't‑‑‑‑‑
HIS HONOUR: And then getting to stage 1, so to speak, and then you have to come in when the council has already been persuaded to a point of view.
APPELLANT B J HARKER: No, I simply just don't want to have to go to the expense of having to re-invest in expert witnesses to re-look at - it is quite expensive.
HIS HONOUR: But that happens in appeals all the time.
APPELLANT B J HARKER: I just feel we have a plan in place that has been put forward and the concerns that revolve around that have been addressed.
HIS HONOUR: What you're proposing sounds attractive in a sense. You're saying it is like the laws of the Medes and Persians, it is carved in stone. They ought to have no possibility whatever of changing their proposal. They ought to have to go back to square 1 and pay the council thousands of dollars.
APPELLANT B J HARKER: I would like to think that the proposal‑‑‑‑‑
HIS HONOUR: Is that really what you're saying?
APPELLANT B J HARKER: No, what I am saying is‑‑‑‑‑
HIS HONOUR: It doesn't attract me.
APPELLANT B J HARKER: ‑‑‑‑‑I would like to think that if proposals have been put forward for the development that they would help to ameliorate the concerns of all of the parties and all of the residents of the street, not just one.
HIS HONOUR: I am having trouble communicating to you that from the Court's point of view your concerns are as valid as any other submitter's concerns. They may reach common ground. It seems that they probably have. But, in doing so, they can't exclude you. It might be the case that if you're left as the only stand-out, the council or even the Court may say, well, everyone is reasonable here except the Harkers. But I just don't know what the issues are on your side and it is not appropriate for me to find out today.
But what I am asking you now is: do you want to insist on a November hearing? Ordinarily delay would be bad for the developer. One possible outcome of the appeal when it comes on is that it will be dismissed and the development will go ahead. They're closer to getting an approval once the appeal comes on. If the evil day from your point of view is put off then maybe they will never get the appeal resolved. It might all go away. I would like to know what your argument is for sticking to the hearing in November?
APPELLANT B J HARKER: My argument for sticking to that hearing date is that I would like to use the expert witnesses that are currently on file that have been listed by both myself and the other appellant.
HIS HONOUR: It may well be that you can achieve that.
APPELLANT B J HARKER: I would like to achieve that. My concern is that‑‑‑‑‑
HIS HONOUR: But that has got nothing to do with the November hearing.
APPELLANT B J HARKER: Yes, it does have something to do with the proposal that the other parties have in bringing on changes to the plans that are going to be re-submitted to council and therefore require additional input.
HIS HONOUR: Do you understand the council can't approve the plans now because it is all before the Court?
APPELLANT B J HARKER: Yes.
HIS HONOUR: The council can express a view to the Court about whether the new plans are a good idea or not but it doesn't make the decision.
If the council take a certain view, maybe that influences the Court, but it is not going to determine what the Court decides.
APPELLANT B J HARKER: So, in other words, what you're saying is all the evidence that has already been put forward by the expert witnesses will all still be relevant, et cetera.
HIS HONOUR: Yes.
APPELLANT B J HARKER: Regardless of any proposals that are put forward by the other party - the change of plans.
HIS HONOUR: That's right. But depending on what the changes are some of the things that the experts say might have become irrelevant. It is hard to say in a vacuum what might happen. It may well be that there are other things that the experts have said that still are relevant despite the changes. But you're not telling me that you have to go overseas in December or January or something like that.
APPELLANT B J HARKER: December - I will not be able to sit through a hearing in December, your Honour.. I work in retail and I am required to be at work 100 per cent.
HIS HONOUR: Because it is Christmas?
APPELLANT B J HARKER: Absolutely, your Honour. There is no leave granted in my position at work during the time.
HIS HONOUR: What do you say about that, Mr Houston?
MR HOUSTON: We might not get on until next year. We accept that, your Honour. could I also just point out that with what Mr Harker has to say about the difficulties created for him, he has not yet seen the revised approvals package and that is because the council has not yet formed a final view on it. As soon as it does, we are proposing to give it to Mr Harker. He may be pleasantly surprised. It may resolve some of the matters he is concerned about. He simply doesn't know.
HIS HONOUR: That's right. The changes might be good news for you as well as for the others, mightn't they?
APPELLANT B J HARKER: They may be. But based on communication that has already been between the parties, it is probably unlikely - highly unlikely.
HIS HONOUR: If I were the developer, I'd probably do what they have done, negotiate separately with the appellants that I faced. Things just tend to get more complicated the more voices you have got clamouring to be heard. The way they have elected to do it, you're the appellant they're talking to second. Provided you can comply with your employer's requirements over the Christmas season, you don't seem to me to have any strong reason against the November sitting idea coming to an end. Is that right?
APPELLANT B J HARKER: Yes, your Honour, that is fine.
HIS HONOUR: If you could produce an affidavit, if anyone requires it, confirming what you have said about the demands of your employment in December, I would think it was the wrong thing for the Court to require you to be available to prepare and participate in a hearing that disrupted that employment.
I hope that gets transcribed. You can get a copy to show me in the future or another Judge. I would like everything transcribed that has happened since Mr Houston rose after the reasons that I gave before.
MR HOUSTON: If I can just add, your Honour. I have instructions that my client isn't insisting on December if that alleviates the problems that Mr Harker is concerned about.
HIS HONOUR: Order as per initialled draft. Now, the meaning of that is that although you're not going to get a trial in November, there is still a mention next Thursday. Do you understand that, Mr Harker?
APPELLANT B J HARKER: I won't be here, your Honour, on Thursday.
HIS HONOUR: Well, is there a better date than that?
APPELLANT B J HARKER: Yes, the 15th of 16th of October will be fine, your Honour.
MR HOUSTON: The 15th perhaps, your Honour.
HIS HONOUR: The 15th. All right. I will cross out 8 in your paragraph 2, Mr Houston, and I will put in 15. So that is another three days out of the November sittings.
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