Nucrush Pty Ltd v Gold Coast City Council (No 2)

[2025] QPEC 10

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Nucrush Pty Ltd v Gold Coast City Council & Ors (No 2) [2025] QPEC 10

PARTIES:

NUCRUSH PTY LTD (ACN 010 119 981)

(Appellant)

v

GOLD COAST CITY COUNCIL

(Respondent)

AND

GWENDA FELMINGHAM

(First Co-Respondent by Election)

AND

ANTHONY MICHAEL POTTER

(Second Co-Respondent by Election)

AND

BARBARA MONTEATH

(Twelfth Co-Respondent by Election)

AND

JAQUIELINE BROADBRIDGE

(Twentieth Co-Respondent by Election)

AND

GLENDA BRAITHWAITE

(Twenty-First Co-Respondent by Election)

AND

HILARY J STUBBS

(Twenty-Fifth Co-Respondent by Election)

AND

CHIEF-EXCUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(Twenty-Seventh Co-Respondent by Election)

FILE NO/S:

3086 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

28 May 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2025

JUDGE:

Everson DCJ

ORDER:

APPLICATION REFUSED.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – ADDITION OF ISSUES – where there was significant and unsatisfactorily explained delay and the appellant has lost the right to make a superseded planning scheme request – whether leave to add additional issues ought be given.

CASES:

Hartnett v Hynes [2009] QSC 225

Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

COUNSEL:

Mr M Batty KC with Ms Rodgers for the appellant

Mr Wylie for the respondent

Ms Buckley for the twenty-seventh co-respondent by election

SOLICITORS:

Connor O’Meara for the appellant

McCollough Robertson for the respondent

HopgoodGanim for the twenty-seventh co-respondent by election

1. This is an application by the respondent seeking leave to file amended Reasons for Refusal in an appeal against the respondent’s decision to refuse a development application to expand an established quarry at Oxenford.

2. The development application was lodged on 21 May 2019.  It was refused, resulting in the notice of appeal being filed on 26 November 2021.

3. The respondent’s Reasons for Refusal were filed on 28 March 2022, and these were identified as part of the issues in dispute in the appeal pursuant to the order of Kefford DCJ on 5 August 2022.  They included allegations concerning the impact of the proposed development on ecological values mapped pursuant to the respondent’s planning scheme (version 6) which was in effect when the development application was properly made on 21 May 2019.  Since that time, the mapping has been reviewed and changed.  Version 10 of the planning scheme took effect on 4 July 2023, and in the amended Reasons for Refusal the subject of this application, the respondent seeks to add issues arising from Vegetation Overlay Map 8, which now applies to the land the subject of the proposed development.

4. As a consequence of s 45(7) of the Planning Act 2016 (“PA”), the development application must be assessed against the respondent’s planning scheme in effect when it was properly made (version 6). However, pursuant to s 45(8), the court may give the weight it considers appropriate to subsequent amendments.

5. For an application of this type, s 10 of the Planning and Environment Court Act 2016 is a good place to start.  It states:

   (1)     In conducting P&E Court proceedings and applying the rules, the P&E Court must—

   (a)facilitate the just and expeditious resolution of the issues; and

   (b)avoid undue delay, expense and technicality.

   …

6. In Hartnett v Hynes [2009] QSC 225 at [27], Applegarth J outlined 12 principles to apply with respect to applications involving amendments which seek to raise new issues. These were approved by the Court of Appeal in Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267 at [74], with the observation by Flanagan J that they are only a guide and each case will depend on its own circumstances.

7. Relevant considerations before me are primarily the delay in seeking to raise the new issue and the explanation for it, and the prejudice the appellant asserts it will suffer as a consequence.  Notably, Applegarth J observed in his list of principles:

   Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.

8. Essentially, the respondent argues that: it is in the interests of justice that the court have regard to the most up to date mapping in hearing and determining the appeal; the appellant will not suffer any real prejudice should the issue be added; and that it has explained how the failure to previously raise the amended mapping occurred.  The respondent emphasises that the relevant experts have not yet commenced their joint meetings and that dates for the hearing of the appeal have not yet been set.  The respondent concedes, however, that ecological impacts of the proposed development, aside from the precise categorisation of the site pursuant to the latest mapping, have always been and remain in issue.

9. As Mr Connor, the applicant’s solicitor, points out, despite the change to the mapping giving rise to this application being known to the respondent since at least November 2019, the first time the respondent raised the issue in this appeal was when it served this application on the appellant after it was filed on 12 February 2025.  At first glance, this appears an unacceptable delay.  The respondent seeks to explain it as an oversight on the part of both the respondent’s officers and legal representatives.  The explanation concerning the former is lacking in substance and based on information and belief in an affidavit sworn by the solicitor who has the carriage of the matter.  In my view, there is unacceptable delay in raising the issue and an unsatisfactory explanation for it. 

10. The appellant asserts it will also suffer prejudice should the application be allowed. Because of the delay, it asserts that it has lost the right to make a request to apply the superseded planning scheme to the proposed development and have it either assessed without the changed mapping, or trigger a right to compensation pursuant to s 29 of the PA. The respondent is dismissive of this assertion.

11. The fact remains however that, if the change to the mapping giving rise to the application is of significance to the eventual outcome of the appeal, the appellant has clearly suffered significant potential prejudice.  On the other hand, if the change to the mapping is not of significance to the eventual outcome of the appeal (and I note that the changed mapping only something that the court can give the weight it considers appropriate to pursuant to s 45(8)), then the delay in raising the issue and the absence of a satisfactory explanation for it weighs against the addition of such a peripheral issue.  This is particularly so where the ecological values of the site are already in issue in the appeal.

12. Either way, in the exercise of my discretion I refuse the application.