Rainbow Shores Pty Ltd v Gympie Regional Council

[2011] QPEC 126

[2011] QPEC 126

PLANNING AND ENVIRONMENT COURT

RACKEMANN DCJ

P & E Appeal No 2768 of 2009

RAINBOW SHORES PTY LTD	Appellant
and
GYMPIE REGIONAL COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 24/08/2011

ORDER

HIS HONOUR:  These are applications by each of the Chief Executive, Department of Resource Management, and by the Council, for leave to notify the appointment of further experts and for those experts to give evidence in the appeal.

The applications come late in the day, with the opening and site inspection for the trial to occur in the next couple of weeks and the trial of the matter otherwise to commence in October.

The applications first came on before me some little time ago, and I indicated then that I was not then minded to grant the applications, because of the deficiencies in the material that was then relied upon by each of the Department and by the Council. 

At that stage little was known about the identity of the experts to be called by the Department or the scope of their evidence, and whilst a little bit more was known about the Council's intention to call a Mr Hamlyn-Harris, the identity and scope of the ground water expert, which it sought leave to also call, was unknown.

Since then further material has been placed before the Court.  The position now is that each of the Department and the Council have identified the two experts that each intend to call and have placed before the Court details of their qualifications and experience and have descended to set out a list of the specific issues in respect of which each would be limited in the giving of their evidence.  The Department has also filed an affidavit to attempt to explain the lateness of its change of attitude.

The experts who are to be called are in the area of waste effluent disposal and ground water. 

The proposal, which I described in my earlier reasons, is for a large residential development which will increase the population of the small township of Rainbow Beach tenfold.  One of the necessary consequences of increasing the population by that degree is that one has effluent to deal with.  The proposal of the developer is to deal with that by way of collecting it, having it treated to a certain standard and then irrigating it.  That was one of the options that was initially advised in the material provided in response to an information request.  It became the option that was to be pursued in the course of the appeal, and it remains what is proposed in the event that approval is granted. 

There has, however, been a somewhat late change on the part of the developer in relation to the detail of that.  Those changes are set out in some detail in the material before me and it is unnecessary for me to repeat all of that detail. 

As a result of more detailed soil testing, Mr Bristow who is the relevant consultant engaged by the appellant, made recommendations that the proposed irrigation rate be increased and that the area required for irrigation be reduced.  Further and significantly, the recommendation was that since dry soil irrigation was now seen to be impractical, there would be a need for wet soil irrigation.  Some of the treated waste water will pass into the groundwater, as opposed to being taken up wholly by vegetation.  There are also some changes in relation to what would be the priority areas for the irrigation of the treated effluent. 

Mr Lawlor raised an issue about whether those changes were more than a minor change to the development application, such as to take the consideration of the proposal beyond the jurisdiction of the Court.  He focused in particular on the significance or arguable significance, as a matter of merit, of the changes to the detail of the waste water disposal system. 

The test, however, is whether there has been a minor change in relation to the application as a whole.  It must be remembered that this is an application for a preliminary approval, that the application relates to a large residential development and  that the changes of which we are speaking are changes to the detail of an ancillary component of the major development which is being proposed.  In my view, the changes do not result in a substantially different form of development.  They are not such as would change the level of assessment or involve additional referral agencies.  The development application remains one for the same type of development.  As a matter of fact and degree, I am satisfied that the changes are permissible changes and do not take the matter outside the jurisdiction of the Court. 

That does not mean, however, that the changes are completely inconsequential or that they do not raise matters of relevance to whether, as a matter of merit, the matter should be approved or refused.  In particular, the changes to the irrigation which will see an interaction with the groundwater obviously raise a heightened concern about groundwater issues and has excited each of the council and the department to wish to nominate groundwater experts to address issues of concern. 

Senior counsel who appeared on behalf of the appellant pointed out that groundwater was always an issue in the case.  He pointed out that the department, for its part, had not explained sufficiently, or indeed at all, why it nominated an expert at the beginning of the appeal, only to discontinue the nomination of the expert.  He painted the affidavit of Mr Delzoppo as not going far enough to fully explain the change on the department's position.  In my opinion, however, the recent change is a relevant factor, particularly from the point of view of looking at the groundwater issues. 

I am mindful that the objective of the Planning and Environment Court rules is the avoidance of undue delay and expense.  I acknowledge that allowing this evidence in at this stage will involve additional expense and possibly some delay, although that is not certain at this stage.  However that cannot be the only consideration.  We are, as the department and council both emphasized, dealing with a very significant development in the context of Rainbow Beach and if it is to proceed, its impacts will be suffered not only by the parties to this proceeding but more generally by the community. 

It is not suggested that the issues which have been raised in relation to groundwater are issues which are frivolous or which can be, in any sense, disregarded out of hand.  They have been raised after consultation with duly qualified experts and in the circumstances, I am prepared to permit both the council and the appellant to notify additional experts in the area of groundwater. 

Mr Gibson QC on behalf of the appellant acknowledged that if I reached that conclusion, then the issues as formulated in the material before me with respect to groundwater, have been appropriately formulated.  Accordingly the additional experts will be allowed to address those issues, as they have been formulated.  It would only be fair in the circumstances to permit the appellant also to now engage a specialist groundwater expert and the appellant has nominated Mr Neil Sutherland in that regard. 

A greater debate was raised in relation to the effluent disposal experts otherwise.  For the council, issues of this kind have been dealt with to date by Mr Fredman.  Mr Fredman has engaged in a series of meetings with Mr Bristow and has produced a number of joint reports, including, most recently, one which was held before the ADR Registrar after delivery of the Bristow report of May which detailed the changes to the effluent disposal strategy.  Again, it is that change of strategy which was primarily relied upon as explaining the council's wish to appoint Mr Hamlyn-Harris as an additional expert.

As Mr Gibson QC submitted, an examination of the material falls short of showing that that is a full explanation for the proposal to call Mr Hamlyn-Harris.

Mr Hamlyn-Harris is a consultant, to whom Mr Fredman has gone for assistance over the course of the preparation of this appeal.  In particular, Mr Fredman who is more of a generalist in terms of his expertise, has turned to Mr Hamlyn-Harris to help him analyse the modelling exercises carried out by or on behalf of Mr Bristow.

Although Mr Hamlyn-Harris has not previously been notified as a potential witness in the case, Mr Bristow has been conscious of Mr Hamlyn-Harris's involvement and has provided him with relevant documents for analysis.  Set against that background, it is understandable that Mr Gibson QC indicated that his client was not opposed to Mr Hamlyn-Harris being identified as a witness, if it was limited to simply matters of the modelling exercise itself.

The list of issues that have been drawn by the council for Mr Hamlyn-Harris to address, however go more broadly.  It is unnecessary for me to go into each of them in detail, but in particular they identify that Mr Hamlyn-Harris wants to take issue with some of the inputs to the modelling which has been carried out by or on behalf of Mr Bristow.  Mr Fredman had previously reached an agreement with Mr Bristow that the inputs were satisfactory.  So, the calling of Mr Hamlyn-Harris is not simply to supplement the evidence of Mr Fredman.  It is, in large measure, designed to have him replace Mr Fredman with respect to evidence on this topic.  It is for that reason that the appellant was perhaps most vehement in its opposition to that part of the application.  Its frustration is perhaps understandable.

It should be acknowledged however, that the council does not ask for Mr Hamlyn-Harris to be appointed with a completely free range as to what he may take issue with, nor to completely repeat the whole exercise that has been done to date.  A list of issues has been drawn, it is somewhat curiously drawn at the minute and should be better defined.  However, particularly under the heading of "Issues that are Agreed", there are a list of matters which appear to be really matters upon which Mr Hamlyn-Harris seeks some clarification.  What follows is what are described as, "Issues that are not agreed", which are particular respects in which Mr Hamlyn-Harris remains concerned about the work that has been done by Mr Bristow.

Whilst there is some basis for the appellant to be critical, particularly of council's decision not to involve someone of greater expertise at an earlier stage, it must again be recognised that Mr Hamlyn-Harris is not intended to be given a completely free range, that the issues which he raises have not been suggested to be issues which are frivolous or which could be dismissed out of hand and they relate to matters which are obviously of significant public interest in relation to the adequacy of measures to dispose of effluent.

It is particularly disappointing that Mr Fredman did not stand aside earlier, given that he now says, for example, that he does not have expertise in relation to the inputs for modelling, and yet, in the past, has been prepared to sign his name to agreements that purported to say that he was satisfied about inputs. 

One can understand the desire of a smaller local government to have an eye to economy and to make the most out of the expertise of their own in-house people, but in a case of this size, complexity and importance to the council, it is better to confront any limitations of expertise earlier, rather than have to deal with them later at a time when costs are only likely to be increased.

That said however, in my view, having regard to the matters that I have already mentioned, having regard also to the fact that it may well be that the delay and expense can be curtailed if the trial dates can still be maintained; a matter which Mr Gibson has not given up hope of - combined with the fact that there is no material before me to demonstrate that, even if the trial was to be adjourned, there would be any particular prejudice to the appellant or to anybody else, and being mindful that, so far as the Court's resources are concerned, there is still plenty of time for the October trial dates to be otherwise utilised, it seems to me that the balance lies in favour of allowing Mr Hamlyn-Harris to be appointed to deal with the matters that are set out in the issues as formulated, albeit that there might be a need for some further work in relation to the articulation of those issues.

In so far as the Crown's application to call its own waste water expert, that application is not complicated by the fact that they are seeking to substitute a new expert for another one who has already participated.  From their perspective it is a late notification of an expert.  The reasoning for that was attempted to be explained in the affidavit of Mr Delzoppo.

It seems to me that that affidavit falls short of providing a completely satisfactory explanation and, as Mr Gibson suggested, it may well be that the material that was delivered in May by Mr Bristow was the trigger which excited people to look at matters more closely than they had in the past.

Nevertheless, for much the same reasons, having regard to the importance of the matters involved and the fact that any evidence is to be within a defined range which has now been identified, in my view, the balance again falls in favour of permitting an expert in that aspect to be appointed and that evidence to be given.
...
HIS HONOUR:  I'll direct that the effluent disposal experts complete their joint meeting and joint report on or before Friday the 2nd of September, and that this matter be listed for review not before 11.30 on Monday the 5th.

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HIS HONOUR:  I also direct that if the effluent disposal experts agree that it would be helpful to have the groundwater experts attend their meeting that they're at liberty to invite them to this.  Yes?

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HIS HONOUR:  I'll make a further direction that at trial Mr Fredman in his appeal report and evidence is not to traverse areas being dealt with by Mr Hamlyn-Harris.

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