Property 4 Retail Pty Ltd v. Hervey Bay City Council

[2006] QPEC 110

[2006] QPEC 110

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No BD528 of 2006

PROPERTY 4 RETAIL PTY LTD                Appellant
(ACN 073 957 356)

and

HERVEY BAY CITY COUNCIL                  Respondent

and

CHIEF EXECUTIVE UNDER THE                Co-Respondent
TRANSPORT INFRASTRUCTURE ACT 1994

BRISBANE

..DATE 23/10/2006

JUDGMENT

HIS HONOUR:  Property 4 Retail Pty Ltd has appealed against the decision of the Council to approve its application, for material change of use, subject to conditions.  The orders which the appellant seeks in the appeal are that the appeal be allowed and that certain conditions be amended or removed.

On the 21st of June 2006 directions were made which included a direction in relation to the identification of the issues in the appeal.  The direction was that the issues be identified as the grounds of appeal in the notice of appeal together with any further and better particulars thereof and such other issues as may be notified by any party within a certain time.  There was also provision for the abandonment of issues.

Subsequently to that direction, the Council gave notice that it would contend, in the appeal that, absent condition 20, the proposal would be unacceptable, for a number of reasons.  The appellant took issue with that and the matter was set down before me today, to resolve the scope of the issues in the appeal.

It would seem that the primary point of contention, as between the appellant and the respondent, concerns whether the Court would have jurisdiction, in this appeal, to refuse the development application in the event that the Court was satisfied that condition 20 was unlawful, that the proposal was unacceptable in the absence of that condition and that unacceptability could not be remedied by the imposition of an alternate condition.
The contention of the respondent is that the Court would have that power given the de novo nature of its jurisdiction (section 4.1.52) and the width of its powers in deciding an appeal (section 4.1.54).  The contention of the appellant is that those provisions must implicitly be read down, so that the hearing before the Court is a rehearing only of the decision in respect of the condition and the Court's power to change the decision appealed against, or to set aside the decision appealed against and make a decision replacing the decision set aside, is only a power to change or set aside the decision with respect to the imposition of conditions, not with respect to the approval or refusal of the development application.

The resolution of that question of law, concerning the Court's jurisdiction, would not necessarily alter the scope of the evidence to be adduced at trial.  Accepting, for the purposes of the argument, the contention put forward by the appellant, it would still, in my view, be open to the respondent, in supporting the imposition of the condition, to call evidence to the effect that the proposal would be undesirable in the event that the condition were not imposed.  The question has more significance in relation to the submissions that may be made at the end of the hearing in relation to what orders the Court might ultimately make upon the conclusion of the matter.

When the hearing came on this morning, I expressed the preliminary view that the question was, at this stage, hypothetical and premature for me to determine.  The question may ultimately not need to be determined at all in the context of these proceedings. 

It might be that, upon hearing the evidence, the Court is satisfied that the condition is lawful and that its imposition is appropriate in the exercise of discretion.  If that is so, then the condition will stand and the point of law raised by the parties will not need to be determined.

Another possibility is that the Court would become satisfied that the condition, as formulated, is not a lawful condition, but that the undesirable consequences which might flow from its deletion could appropriately be addressed by the imposition of a differently worded condition in its stead.  If that were the case, then again, the legal issue may never fall for determination.

Another possibility is that the Court may be satisfied that the condition is either unlawful or, as a matter of discretion, ought not be imposed and that there are no unacceptable consequences to the deletion of the condition.  In that case the approval could stand, shorn of the condition and the issue would never fall for determination. 

The issue will only arise if the Court is satisfied that the condition cannot, or should not, be imposed, that without it, the proposal is unacceptable and that unacceptability cannot be addressed by a alternative condition which could be imposed in lieu.  The occasion for the determination of the point of law has not arisen and may never arise.

Further, I expressed the preliminary view that any ruling that I may make, on an interlocutory basis, at this stage would not necessarily raise an issue of estoppel between the parties such that the matter may, in any event, be open to reargument before whoever the trial Judge might be, irrespective of what view I had expressed on the matter. In that regard I referred the parties to the Court of Appeal's decision in Tri-Care Australia Limited v Gold Coast City Council [1999] QCA 489.

Having expressed those preliminary views I stood the matter down for some time, to allow the parties to consider their positions.  When the matter resumed, counsel for the appellant accepted the correctness of the preliminary views which I had expressed and desisted from asking for any ruling today. 

It seems to me appropriate that the basis upon which the Council will contend that the proposal would be unacceptable, in the absence of the imposition of the condition, ought be restated in a notice.  I will therefore direct the respondent to give notice on or before the 30th of October 2006 of the basis upon which it will contend that, absent the controversial conditions, the proposal would be unacceptable and I will direct that the issues in the appeal, be those set out in the notice of appeal and the notice to be given by the respondent, pursuant to these directions.  The matter that would otherwise have been argued today can be argued in the course of the appeal and will no doubt be determined in that forum, if it becomes necessary to do so.

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