Newman & Ors v Brisbane City Council

[2010] QPEC 81

[2010] QPEC 81

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2324 of 2010

PETER NEWMAN & ORS	Appellant
and
BRISBANE CITY COUNCIL & ORS	Respondent

BRISBANE

..DATE 02/09/2010

ORDER

CATCHWORDS

Consideration of appropriate directions in submitter appeal against approval of a "commercial" building with two street frontages, one to "residential" street - competing timetable proposed - developer opposes delay - appellant sought excessive times for disclosure
HIS HONOUR:  Order as per initialled draft.

...

HIS HONOUR:  This is a submitter appeal against the Council's approval of a development application made by the co-respondent Royal Australasian College of Surgeons.  The College which wants to replace its existing premises which have frontages to Water Street and Union Street in the Valley/Spring Hill area of Brisbane with a newer, larger building for its customary, administrative and educational activities.

The proposal is unwelcome from the point of view of local people who at present are in two categories, four of them self‑represented as appellants and one, Mr Steendijk, self‑represented as a co-respondent by election.  It remains to be seen whether common representation will ensue; there may be some tactical advantages for the submitters who have joined in the appeal in the separation.

The court would expect the appellants to present a united front and act through a single legal representative or a single one of them.  Although all have attended today, it would not be expected that all would necessarily attend on future occasions.  What is required is that one be here.

The spokesman today has been Mr Newman who has drawn the court's attention to a number of matters.  One led to the court indicating willingness to extend time for the council's filing of its entry of appearance.  It occurs to me it might be sensible to add paragraph 18 to the draft order which the court has initialled in the following terms: “extend to today time for filing of the respondent's entry of appearance."  The document was apparently filed a couple of days late, yesterday; it has not yet reached the file.

The appellants themselves have been late in some notifications of the appeal.  It is not necessary in the circumstances to make any order about that.

Mr Newman observed that Mr Houston for the appellant described the address of the premises as 50 Water Street, The Valley, to which there is a frontage.  He is of the view that the proper address is 99 Union Street, Spring Hill.  Use of that address, in his view, underlines that the proposal involves construction in a residential street.

The point of this I understand to be that development of a commercial appearance may attract undesirable people to the vicinity, such as persons intent on effecting transactions to do with drugs.

This was related to a particular difficulty Mr Newman said he might have in meeting the co-respondents' proposed timetable for disclosure.  There are documents he is hoping to obtain from sources such as the police under “freedom of information.

I have explained to him that disclosure obligations apply to documents that a party presently has in possession or available.  So there need not be delay while additional documents are gathered - or even produced (which might apply to photographs Mr Newman says he has in mind to have taken).  I have explained to him the necessity to keep disclosure up to date and supplement it as new documents become available.

The broad disagreement today between the adverse submitters and the co-respondent developer. in which the Council is neutral, concerns timetabling.  The co-respondent seeks a hearing in February, the others a hearing in April.

Ordinarily, the court is sympathetic to a developer whose development approval is challenged and its coming into effect thereby delayed.  The effect of a pending appeal is to impose delay on the developer and, presumably, attendant costs.

Mr Houston has told the court that his client is operating in constrained circumstances in its present building.  It is not as though its activities are precluded completely.

I have carefully considered the competing timetables and found very helpful the schedule Mr Houston prepared to show where the parties differ.  I gave him leave to read and file that.

The submitter parties are unlikely to face a task needing much time in disclosure on the other hand, notwithstanding the sophistication Mr Houston points to in Mr Newman’s 23 page submission, I think that lay submitters are entitled to the generous times sought for grounds of appeal if those are requested.

My view that a March hearing ought to be worked for is not entirely temporising.  It is consistent with my view that the times Mr Newman was seeking for making disclosure and then for producing copies of documents disclosed for each of which steps he suggested 10 business days were requisite are not justifiable.

Generally speaking, I sympathise with the notion that a February hearing date might be unrealistic or, perhaps more correctly, difficult for all of the parties to meet.  I think it is notorious that it is difficult to achieve things in the December/January period in Brisbane.  Not only are the submitter parties busy people with responsibilities in their private lives, they are likely to find difficulties in the holiday period gaining assistance of professional people or even access to potential lay witnesses who could well be away.

‑‑‑‑‑