Nadic Investments Pty Ltd v Townsville City Council
[2016] QPEC 6
•2 February 2016
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Nadic Investments Pty Ltd v Townsville City Council & Another [2016] QPEC 6
PARTIES:
NADIC INVESTMENTS PTY LTD ACN 009 994 736
(applicant)
and
TOWNSVILLE CITY COUNCIL
(respondent)
and
STOCKLAND DEVELOPMENT PTY LTD ACN 000 064 835
(co-respondent)
FILE NO/S:
1671 of 2015
DIVISION:
Planning & Environment
PROCEEDING:
Hearing of an application for disclosure & directions
ORIGINATING COURT:
Planning & Environment Court of Queensland
DELIVERED ON:
2 February 2016
DELIVERED AT:
Brisbane
JUDGE:
RS Jones DCJ
ORDER:
1. The application is dismissed.
2. The respondent’s costs in the application are reserved.
3. The applicant is to pay the co-respondent’s costs for the application to be assessed unless otherwise agreed.
4. Oral application for leave to amend the notice of appeal refused.
5. Directions ordered as per the draft.
COUNSEL: J Houston for the applicant
S Ure for the respondent
R Litster for the co-respondentSOLICITORS: Broadly Rees Hogan Lawyers for the applicant
Townsville City Council for the respondent
Shand Taylor Lawyers for the co-respondent
HIS HONOUR: On or about 20 March 2015, the respondent Council notified the co-respondent, Stockland, of its decision to grant a preliminary approval for material change in use pursuant to section 242 of the Sustainable Planning Act 2009. A notice of appeal was filed on 24 April 2015 and the hearing of that appeal has been set to commence on 24 February 2016 for a period of three days. The issue in dispute insofar as today’s application is concerned is identified in paragraph 12 of the notice of appeal. Paragraph 12 provides as follows:
The conditions of approval should include a requirement that at the time of the first application for reconfiguration of a lot, the co-respondent dedicate road reserves generally consistent with the road network shown on the Mixed-Use precinct plan including the length between the proposed extension of Nexus Drive west to the appellant’s land.
Relevantly, the relief sought is that:
That the provisions of the development approval be changed to include or to make provision for dedication of road reserves at an appropriate and identifiable time.
The documents that I have been taken to clearly identify that it is intended at some time in the future to provide access to the appellant’s land which lies to the west of that of the co-respondent. Under the specific outcomes for the Mixed-Use Planning Area, it is provided:
The Mixed-Use Planning Area is to be developed to include road, bicycle and pedestrian connections to the adjoining commercial centre and community areas to the north and to the undeveloped land to the west.
The issue in the appeal, therefore, is whether, having regard to the current stage of development approval of this proposal at the date of the filing of the notice of appeal – whether such a condition if imposed would be a reasonable and relevant one in all the circumstances. It is being contended on behalf of the appellant that a condition of this type is desirable because it provides a degree of certainty as to when the dedication of a road reserve through to its land would be provided. To use Mr Houston’s words, what his client wants is a degree of certainty as to when that will occur. It would appear that at least two of the town planners – that is, Mr Perkins and Mr Ovendon – consider that it would be desirable to have an identifiable – again to use Mr Houston’s words, “trigger”, that is an identifiable event time which would determine when the dedication would occur. The extent of the disclosure sought is identified in the application as amended. Paragraph 1 of that application provides:
Within seven days of the date of this order, the co-respondent make disclosure of any and all documents within its possession or under its control directly relevant to the issues in dispute in the two categories of documents identified by the appellant solicitor’s letter to the co-respondent solicitor’s dated 4 November 2015.
Those documents then particularised as follows:
On 4 November 2015 by letter from the appellant solicitors… to the co-respondent solicitors… the appellant sought disclosure of the following two categories of documents:
(a) Any documentation relating to the “investigations, studies or assessments including forward projections in relation to anticipated timing of likely development” and
(b) any documents related to:
(i) The co-respondent’s application (and approval for stage reconfigurations of lots…
(ii) Any applications for and approval of operational works for the stage subdivision (already part of the stage subdivision) and
(iii) Any applications for and approval of any material change of use relevant to the stage subdivision (already part of the stage subdivision).
It was contended that the documents identified are specifically relevant to the Court’s determination of the timing of the construction of the road, bicycle and pedestrian connection to the appellant’s land. For the purposes of this application, Mr Houston accepted that what was really in issue was the dedication of a road reserve, not the actual construction of the road. The respective positions of the parties, are set out in their outlines of argument – and I do not intend to traverse them. Bearing in mind that the essential issue or the issue in contest is that already articulated in paragraph 12 of the notice of appeal, namely whether a condition of that type ought be imposed. Bearing that in mind, it is my view that the documents sought are not only too broadly categorised but, as presently categorised, do not go to, or are not directly relevant to the issue in dispute. Accordingly, the application is dismissed.
HIS HONOUR: Having regard to the reasons given, I really can’t see any reason why costs ought not follow the event. Are you able to provide an estimate of costs?
MR LITSTER: Not immediately, your Honour. I’m not in a position to immediately provide one, your Honour.
HIS HONOUR: All right. Well, it will simply be that the appellant pay the co-respondent’s costs of the application and the costs of the respondent in respect of this application are reserved.
MR LITSTER: And could it be the costs to be assessed unless otherwise agreed?
HIS HONOUR: You obviously haven’t read the decision of Justice Jackson last year. He said all of that wording is completely superfluous.
MR LITSTER: I thought that was the of or incidental, your Honour. I thought that was what he was really focused on.
HIS HONOUR: Well, costs to be assessed unless agreed, and – but something you said a moment ago reminded me. What I meant to say in my reasons was something to this effect: that it struck me that the materials sought was designed more to identify actually when the dedication would occur or be likely to occur rather than address the issue identified in paragraph 12 of the notice of appeal. Does anyone have any objection if I add that to my reasons?
MR URE: No, your Honour.
MR HOUSTON: No, your Honour. There is a matter that will arise in the – I would raise in due course, your Honour.
HIS HONOUR: Right. Now, but – Mr Ure, any objection to me adding that to my reasons?
MR URE: No, your Honour.
MR LITSTER: No.
HIS HONOUR: All right. Yes.
MR HOUSTON: We indicated that – as your Honour seems to have – I understand the thrust of your Honour Judgment to be to limit the scope of the appeal to only paragraph 12. Then we seek leave to make an application to amend the notice of appeal. We foreshadowed that previously as to the terms of it.
HIS HONOUR: Did you?
MR HOUSTON: In correspondence, your Honour, on the 18th of December, and we seek leave to amend. We say it had no implication for the trial.
HIS HONOUR: Do you know – do you have a copy of what the amended notice of appeal might be?
MR HOUSTON: It’s simply the insertion of additional words consistent with what’s in paragraph – in the paragraph 3 of the relief sought, and if ‑ ‑ ‑
HIS HONOUR: Sorry?
MR HOUSTON: ‑ ‑ ‑ your Honour goes to the letter of 18 December 2015, page 110.
HIS HONOUR: Page 110 of the big affidavit, is it?
MR HOUSTON: Yes, your Honour.
HIS HONOUR: Right.
MR HOUSTON: And if your Honour goes to the notice of appeal ‑ ‑ ‑
HIS HONOUR: Sorry? If I could go to the notice of appeal?
MR HOUSTON: Yes, paragraph 12 in the notice of appeal.
HIS HONOUR: I didn’t say the grounds of appeal were limited to paragraph 12. If I did say that, I certainly didn’t mean to. What I meant was that, for the purposes of today’s application, that was the issue in dispute.
MR HOUSTON: I may have misunderstood, then.
HIS HONOUR: Right.
MR HOUSTON: And not having the benefit of seeing it in writing, your Honour.
HIS HONOUR: As I say, if I did say that, that was a mistake, and I’ll correct that, but I certainly meant to limit what was the issue for today’s focus. All right. So I’m looking at the notice of appeal.
MR HOUSTON: Well, the amendment that we were seeking – and it may be unnecessary, in light of what your Honour has said, but we were – if you look at page 110 ‑ ‑ ‑
HIS HONOUR: Yes.
MR HOUSTON: ‑ ‑ ‑ after the words “reconfiguration of a lot”, in the second line, that the words “or at some other appropriate and identifiable time” be added and that’s consistent with subparagraph – with paragraph 3 on page 1 of the notice of appeal.
HIS HONOUR: So if they’re looking at paragraph 12 of the ground of appeal ‑ ‑ ‑
MR HOUSTON: Yes.
HIS HONOUR: ‑ ‑ ‑ you want to add words to the effect – is it – the amendment to this effect: paragraph 12 would read “The conditions of approval should include a requirement that, at the time of the first application for reconfiguration of the lot, or at some other appropriate and identifiable time, the co-respondent dedicate road reserves.”
MR HOUSTON: Yes, your Honour.
HIS HONOUR: Is that the way it would read?
MR HOUSTON: That’s what we seek consistent with the order sought in the relief in paragraph 3.
MR LITSTER: Your Honour, I didn’t come here to meet an application for disclosure as for amendment to the notice of appeal. I came to meet an application for disclosure, and, if there was to be an application to amend the notice of appeal, it should have been brought in proper form and not made instanta now.
HIS HONOUR: Well, I’ve always adopted a pretty robust approach, I must say, to oral application.
MR LITSTER: Yeah, well ‑ ‑ ‑
HIS HONOUR: But ‑ ‑ ‑
MR LITSTER: But ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ if we cut to the chase, Mr Litster ‑ ‑ ‑
MR LITSTER: Yeah.
HIS HONOUR: ‑ ‑ ‑ how does the introduction of those words materially prejudice your client?
MR LITSTER: Complete uncertainty as to what is going to be contended, first point. Second point, experts need to re-meet. Mr Vann confined himself in the experts report – and I’ll take your Honour to it – confined himself in the experts report at page 22 to the only issue raised is whether the dedication of the road reserves the native land generally consistent with the road network [indistinct] mixed-use precinct plan, including the length between the proposed extension of Nexus Drive west of the appellant’s land, should be required – adding emphasis in his own paragraph – at the time of the first application for reconfiguring the lot. He then goes on to consider five reasons why he says that is now a reasonable requirement. He did not go on to consider whether, in terms of the amended – now-proposed amendment, and nor could he have, because this letter was written seven days after the report was delivered, or at some other appropriate and identifiable time. The first thing in a pleading of that kind would have given rise had it been pleaded as part of the original notice of appeal would be what other appropriate time, what other identifiable time, what – give us the particulars, let’s understand why you’re saying that, the basis upon which you’re saying that, and then the experts would have been thrown in a room.
HIS HONOUR: Mr Ure.
MR URE: I adopt the co-respondent’s submissions. It may be appropriate, your Honour – I didn’t understand my learned friend to be saying that he necessarily wanted to do that, but it was just his recollection of what your Honour had said. It may be appropriate, with respect, if your Honour’s normally robust approach yields at this time, your Honour produces your Honour’s reasons, my learned friend Mr Houston has a chance to read the reasons and see if he wishes to persist with what he’s foreshadowing, and, if that’s the case, he can do it in the appropriate manner and we will all have an opportunity to look at it.
HIS HONOUR: I’m not saying – but I understood, Mr Houston, you were making an oral application to amend now, weren’t you?
MR HOUSTON: In the context of what’s now been said, yes, your Honour. We will proceed with an oral application. And in respect – in response to what my learned friend, Mr Litster has said about Mr Vann and the need to re-meet I’m not sure that that’s really true. Firstly, if it was necessary to re-meet, so what, it’ll be a very short meeting, in our submission.
HIS HONOUR: But it would – but it will add costs. Yes. It may not be a short meeting.
MR HOUSTON: Well – I’m sorry, your Honour. Yes.
HIS HONOUR: Look, the – I do consider it probably – I ought not make the amendment at this stage but, Mr Houston, I’m going to be around if you want to file a – no, there’s already an oral application on foot. If you want to re-agitate the point, you can always come back if you want but I don’t think that would be a very wise decision. But it strikes me that this isn’t necessarily fatal to your application. If, as the evidence is likely to fall – I think Mr Perkins is going to talk about it and it would seem also that Mr Ovenden is going to speak about this. I can’t see why you wouldn’t be able to seek leave to amend after you – during the course of the evidence.
MR HOUSTON: Yes. I suspect Mr Litster has foreshadowed objections to what has been said by Mr Perkins.
HIS HONOUR: Yes.
MR HOUSTON: Notwithstanding that it’s been available to his client since the 11th of December. And obviously the expert witnesses approach these things in the way that they see appropriate. Mr Vann elected to adopt his position and Mr Perkins and Mr Ovenden expressed their opinions. We were simply concerned that there be some certainty before the trial commences and – given there are likely now to be directions to – for there to be individual reports, well – which will address points of disagreement. Mr Litster, as I understand it, is foreshadowing that there will be extensive objections to material. It seems unhelpful in the context of a trial where there’s already been concerns raised about its length.
HIS HONOUR: Look, having regard to the proximity of the actual hearing date of this appeal, I’m inclined to cede to Mr Litster’s submissions. I don’t think it would be appropriate on such short notice, even on an oral application, to make the amendment sought at this stage.
MR HOUSTON: Yes. Very well, your Honour.
HIS HONOUR: Well, now, do I have to make any other orders? Because there – I think there, yes, there was a question of directions wasn’t there?
MR LITSTER: There’s a few outstanding matters. Might I hand your Honour a copy of an order that was circulated yesterday. I’ll give you two copies. And we don’t have dates in it as yet. Paragraph 5 of the order of his Honour Judge Searles made provision for a mediation. That mediation has not yet taken place.
HIS HONOUR: Sorry. Has not yet?
MR LITSTER: Has not yet taken place. We understand that the registrar has some availability in the week – it must be next week – Monday, Wednesday or Friday appear to be blank in the most recent version of his diary. I don’t know about the other parties’ availability. I won’t be available on the 12th but – which is Friday – perhaps if it be extended to 12 February and that’ll allow the parties to set the date in paragraph 1 with the input of the registrar. In paragraph 2, the only question would be whether that should occur before the meeting. It’s probably – it doesn’t really matter, as long as there’s an exchange of expert witness statements sufficient time out from the hearing. That probably ‑ ‑ ‑
HIS HONOUR: So in paragraph 1, you’re saying extend it to – was it 12 February?
MR LITSTER: 12 February.
HIS HONOUR: Mr ‑ ‑ ‑
MR LITSTER: And that perhaps then seven days before the 24th, which would be the 17th of February for the – for paragraph 2 and paragraph 3.
HIS HONOUR: Mr Ure?
MR URE: Yes, your Honour. I’m content with that.
MR HOUSTON: Sorry. I just want to clarify the – paragraph 2, the 12th of February?
HIS HONOUR: 17th.
MR LITSTER: 17th.
MR HOUSTON: 17th. Both ‑ ‑ ‑
HIS HONOUR: Paragraph 1 will be the 12th, paragraph 2 and 3 the 17th.
MR LITSTER: Yes.
MR HOUSTON: I’m sorry. I’m obviously looking at the wrong order.
MR LITSTER: Sorry. It’s the one – here you go. James, there’s a copy.
HIS HONOUR: Yes. I think you might have been looking at the wrong document. Bailiff, would you mind just showing that to Mr Houston. Do you have any difficulty with those dates, Mr Houston?
MR HOUSTON: I have got some constraints, your Honour, which give rise to concerns about my ability to comply with 2 and 3. And ‑ ‑ ‑
HIS HONOUR: It’s a bit over a fortnight.
MR HOUSTON: Yes. Yes, your Honour. That’s a week before the commencement of the hearing which will – I – perhaps if I just record that I have some constraints but we’ll certainly do our best to – to comply by the 17th of February.
HIS HONOUR: Well, I think we all know from experience that sometimes slippage occurs but I think it’s appropriate to make ‑ ‑ ‑
MR HOUSTON: Yes.
HIS HONOUR: ‑ ‑ ‑ orders setting a timeframe.
MR HOUSTON: Yes. I accept that, your Honour.
HIS HONOUR: All right.
MR LITSTER: I was just standing up, as your Honour says ‑ ‑ ‑
MR URE: There’s usually a degree ‑ ‑ ‑
HIS HONOUR: Just anxious – I’m just anxious to get out, Mr Ure.
MR URE: There’s usually an attempt to ameliorate concerns out of slippage. It’s a matter of practice.
HIS HONOUR: Yes. I’ve got – I’m not – I’m not at all – I’m not at all suggesting that these orders are just bits of paper but we’re all – had experiences where slippage occurs and usually it’s sorted out behind the scenes. But lest there be no doubt about it, I expect those orders to be complied with unless there’s good reasons not to. So it’ll be – those orders will be as per the draft. Pardon me. Is there anything else?
MR LITSTER: No, your Honour.
MR HOUSTON: No.
MR URE: No, your Honour.
HIS HONOUR: Adjourn the court.
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