Ramsgrove Pty Ltd v Beaudesert Shire Council

[2006] QPEC 9

[2006] QPEC 009

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN  QC

P & E Application No BD275 of 2005

RAMSGROVE PTY LTD

Appellant

and

BEAUDESERT SHIRE COUNCIL

and

JACARTA PTY LTD

Respondent

Co-Respondent

BRISBANE

..DATE 15/02/2006

ORDER

CATCHWORDS:  Directions to advance appeal to hearing vacated - hearing should await determination of an application to the Court of Appeal for leave to appeal (and any consequent
appeal) which, if successful, would necessarily defeat the development application - costs of 5 day "merits" appeal might be wasted - circumstances in which long-standing direction for particulars of submitter appellant's grounds, never complied with, was left standing.

HIS HONOUR:  In 275 of 2005, extend until the 1st of March 2006 the time for compliance at paragraph 1 of the order of Judge Wilson SC of the 14th of December 2005.  Otherwise vacate the directions contained in that order, and the directions contained in the order of Judge Rackemann of 12th of August 2005. 

Liberty to Jacarta Pty Ltd to apply for the setting down of Appeals 247, 248, and 275 of 2005 in the event that Ramsgrove Pty Ltd fails to prosecute with due diligence in the Court of Appeal its proceeding 560 of 2006 in respect of the decision of Judge Griffin SC in 275 of 2005 on the 9th of December 2005.  I direct that these proceedings be mentioned in on the 12th of April 2006. 

...

HIS HONOUR:  I will reserve Jacarta's application for the costs occasioned by Ramsgrove Pty Ltd's non-compliance with the said paragraph 1. 

...
HIS HONOUR:  In 247 and 248 of 2005, vacate the directions given on the 12th of August 2005.

Do we go back to that one too?

MR HOUSTON:  Yes, your Honour, for safety's sake.

HIS HONOUR:  And on the 14th of December 2005.  I order a mention on the 12th of April 2006.

The Court has made the orders indicated on the basis of an established practice in this Court to await the determination of appeals or applications for leave to appeal in respect of orders of the Court, the outcome of which may impact on the fate of the matter in this Court. On occasion, it has been thought wise to await the determination of quite independent proceedings, such as the decision in Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; [2005] QPELR 1, as in Barns v Maroochydore Shire Council [2005] QPELR 625.

Ramsgrove in the principal of the appeals of concern today has brought a submitter appeal in respect of Jacata Proprietary Limited's development application for a supermarket in Jimboomba. It has been an applicant for such a development itself, but its own application which was rejected by the Council and the subject of a developer appeal was defeated because of deficiencies in public notification: [2005] QPEC 101. That happened at the time when a set of directions had been given which would have led to the hearing of a merits appeal.

That determination was tested in the Court of Appeal but survived: [2005] QCA 434. The alacrity with which that appeal by Ramsgrove was instituted and pursued is said to be in marked contrast with its performance in respect of a second application for leave to appeal the Court of Appeal, this time in respect of a determination made by Judge Griffin SC on the 9th of December 2005 in relation to Jacata Proprietary Limited's development application for a supermarket in Jimboomba: [2005] QPEC 116.

His Honour determined that the application of Jacata had lapsed but could be saved by use of section 4.1.5A of the IPA.  Directions have been made calculated to lead to a hearing on the merits in relation to Jacata's development application.  Not only has Ramsgrove instituted an appeal, so too have others become involved, including Mr Connor's clients, the Klinges and Lachlan Reit Limited, who respectively operate a supermarket in Jimboomba, the subject of a development application for expansion of it, and a supermarket in Beaudesert.

It was made clear when the directions last mentioned were given that Ramsgrove had under active consideration institution of the Court of Appeal proceedings which have now been commenced.  The Court of Appeal hearing (and, indeed, its determination) in respect of Ramsgrove's earlier appeal happened very quickly.  Things are happening in a more leisurely way this time.  There is no hearing date indicated for the application for leave to appeal.

In a context where delay may be seen to suit Ramsgrove the material before the Court indicates that personal and like difficulties may have contributed to delay - as the "holiday period" may have done - but the fact should be faced that Ramsgrove has little incentive to actively advance this appeal.  It proposes to do as Jacata has done with what I have described as a parachute development application to the Council which can proceed if the extant Court of Appeal proceedings are resolved unfavourably to its cause.  Ramsgrove has not yet lodged with the Council the new development application which it proposes to pursue; Mr Lyons QC told the Court it will not be identical with its predecessor.

Unsurprisingly, when Jacata's planner submitted its parachute application, he urged on the Council the justice of ensuring that all commercial contenders for supermarket development in Jimboomba have an equal chance to put their best foot forward, and gain development approval.

It is unsurprising that the same approach is not taken to Ramsgrove's application now to have vacated arrangements which would lead to a hearing in relation to Jacata's original development application on the merits in April. It may or may not turn out that the Court determines the fate of all three applications on a single occasion. Compare Ugarin Pty Ltd v Logan City Council [2004] QPELR 392.

It is unattractive to contemplate the waste of costs that might occur were the merits determination to proceed over the five days provisionally allocated only to have the Court of Appeal determine that the application was so defective it could not proceed.  Mr Andreatidis, for the Council, has spoken of its unhappiness with the present situation: they are acknowledging the importance of not risking the waste of ratepayers' money.  Mr Connor's clients, similarly, do not wish to run the risk of considerable expenditure of trouble and money at such a five-day hearing, which might retrospectively be adjudged pointless. 

Naturally, Mr Houston's clients are not inclined to offer to bear the costs of other parties that might be wasted.  The practical decision is to vacate the existing directions and await proceedings in the Court of Appeal. 

I have attempted to do this on the basis that if those proceedings are not prosecuted diligently, the matter will be reviewed and Jacata may get its determination on the merits in due course. 

It is unimpressive that Ramsgrove is yet to provide particulars in relation to its notice of appeal which were first ordered to be given by Judge Rackemann on the 12th of August last year.  As Mr Lyons says, there may be wasted costs associated with supplying those particulars now, depending on what happens in the Court of Appeal. 

Despite that, it seems to me reasonable for the Court to insist at this stage on compliance with Judge Rackemann's directions which indeed were reinforced by Judge Wilson's directions of 14th of December last year. 

The matter is brought before the Court today on Jacata's complaint in relation to particulars.  Advantage is being taken of the occasion by Mr Lyons to have the existing directions vacated (in full) with the result that the above, slightly less all-embracing orders have been made.  I am far from displeased that a situation has been set up now in which Ramsgrove is under real pressure to comply with its obligations under relevant rules and with any timetable that might be set by the Court.  It may be seen as having been given fair warning that a more rigorous attitude will be displayed by the Court from here on, whereby there it runs a risk of non-compliance prejudicing its right to present its case further.

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