Perpetual Trustees Victoria Ltd & Day v Cairns City Council

[2009] QPEC 16

[2009] QPEC 16

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3284 of 2008

PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258)

Appellant

and

GREGORY LEE DAY

Appellant

CAIRNS CITY COUNCIL

and

CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

and

Respondent

Co- Respondent

CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY

and

LANDELL PTY LTD (ACN 010 889 193)

Co-Respondent

Co-Respondent

BRISBANE

..DATE 01/04/2009

ORDER

CATCHWORDS: Integrated Planning Act 1997 - commercial competitors appeal against development approval granted to co-respondent for a shopping centre - Court reluctant to vary standing directions on short notice to force removal of the proposed hearing to a later sitting.

HIS HONOUR:  This began as an uncontentious application by the

co-respondent which is seeking to defend a development

approval obtained from the Council in respect of a development

that might be described as a home centre and show rooms for

"Fielder Gillespie orders" in respect of further disclosure

that it might make pursuant to the continuing duty of

disclosure.

What's proposed (for the benefit of all parties) is that if

there is to be further disclosure then by next Saturday the

parties identify the "Fielder Gillespie documents" in a

separate category in a supplementary list of documents.  The

draft order which attracted the agreement of all parties

contemplates a restricted making of copies of material in the

Fielder Gillespie category, and then that the material made

available only to those who supply to the Court an appropriate

undertaking directed to preserve confidentiality.

The appellant (represented by Mr Johnston) which is a

commercial rival has taken advantage of the application coming

on before the Court to seek to have directions made in

December last year vacated on the basis that what emerges from

the Fielder Gillespie exercise may render it no longer

feasible to have an adjourned hearing because experts will

require more time to formulate their views, meet, write

reports and the like.

It is commendable of Mr Johnston's people, in my view, to take

advantage of the co-respondent's application being before the

Court to seek to have the directions varied; that course might

lead to some additional efficiency and economy.

Unfortunately Mr Job had very late notice of the application

which would defer the hearing to the July or August pool: (I

interpolate August because of potential unavailability of the

appellant's economic expert) he is bereft of access to Mr

Hughes SC who is leading in the case and indeed to his

instructing solicitors in Cairns.  Thus he was unable to deal

with the issues appropriately.

I further accept from him that it's better to wait and see

whether the special Fielder Gillespie arrangements and any

further disclosure actually lead to problems.  It's possible

that they may do so because, for example, an issue is raised

about whether Fielder Gillespie documents identified as such

are properly so categorised which the Court may have to

resolve; that could produce delay.

Notwithstanding Mr Job's initial approach that it was

premature to deal with a revision of the standing directions

which might prove to be unnecessary, he made proposals in the

end which give Mr Johnston part of what he seeks by way of

additional time for the experts without the June hearing

having to be abandoned.  The future will show whether it can

be retained or not.  For the moment I think that it should be. 

There will be, effectively, extensions of the Court's

timetable.  Things may so develop that further extensions are

needed and applied for.  Only the future will show that.

I would like set out in these reasons, I won't read them now,

the terms of the order which I've initialled which will

constitute the Court's order today.

For the assistance of the parties I will describe the

additions that I've written into the draft: The existing draft

will become part A by insertion of capital A after the words: 

"It is ordered".

Then that will be followed by the following addition, B, that: 

"Notwithstanding earlier orders of the Court the dates for

completion of joint expert reports be 17 April 2009 for

experts other than town planners; 24 April 2009 for town

planners and that experts' statements directed to any

identified points of disagreement be exchanged by 18 May

2009."

C:   That the appeal be reviewed on 22 May 2009.

...

HIS HONOUR:  C:  That the appeal be reviewed on 22 April 2009.

D:  That the notice of appeal be amended by:

(1)  Deleting paragraph 4(d)(vii) - removal of marine

plants.

(2)  Deleting paragraph 4(i) - removal of heritage

structures.

(3)  Deleting paragraph 4(j) - flooding.

There will be liberty to apply. 

I note that Exhibit 1 is a document containing a list of

amendments which Mr Johnston proposed to the notice of appeal

consistently with the outcome of a mediation exercise.  It

included a proposal to amend paragraph 4(w) formulated in a

way that was unsatisfactory to Mr Job.  He considered it

didn't reflect the agreement.  So that that issue remains to

be resolved in the future.

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