Robina Pty Ltd v Gold Coast City Council

[2011] QPEC 14

[2011] QPEC 14

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 27-29 of 2011

ROBINA PTY LTD & ORS	Applicant
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 18/02/2011

..DAY 1

ORDER

CATCHWORDS

Directions for conduct of multiple submitter appeals by commercial competitors and developer's conditions appeal - whether conditions appeal should be heard with the others - whether Council's (assessment manager's) documents should be made available in advance of general disclosure to assist parties to identify issues, where assessment took years - whether court-directed mediation should occur at Council's premises - whether raising of new issues should be dependant on court's leave.
HIS HONOUR:  The court's indicated its view in respect of the

contentious issues in this directions hearing and the parties
are retiring to prepare orders for my signature.

The first issue concerned whether or not appeal 4067 of 2010
ought to be in the group of appeals which, by common consent,
should be heard together.  27, 28, and 29 of 2011 are
submitter appeals by competing shopping centres which have
appealed against the Council's granting of a development
approval which permits expansion of an existing shopping
centre at Nerang from some 10,000 sq m GFA to 57,000 sq m, or
thereabouts.

4067 of 2010 is the developer's conditions appeal.  It takes
the approach that, as often happens in practice, conditions
can be dealt with separately from the more basic issue as to
whether or not a development should be permitted at all.

Mr Lyons, for the co-respondent developer, also complains that there is neither a formal application by Mr Bowie, solicitor for the three commercial competitor appellants, nor any evidence before the court to show why the conditions appeal ought to be dealt with the others.

It would doubtless suit Mr Lyons' client to have conditions issues separated out.  I am far from certain that that can be done.

Under section 4.1.54 of the Integrated Planning Act, under
which the appeal proceeds, the courts options include
confirming the Council's decision with the existing conditions
in it.

I am inclined to think that Mr Bowie is correct in saying that
the conditions set by the Council are part and parcel of the
approval.  There are matters to do with traffic, and the like,
which are likely to be at the heart of the appellants’ appeals
in any event, and dealt with by the same groups of experts.

I emphasise that I am dealing with this aspect as a matter of
impression and without any examination based on close
investigation of the appeals, or on any evidence.  So it may be that the co-respondent is able to persuade the court that the conditions appeal, in which the other appellants are also
parties, can sensibly be separated out.

The next issue concerned whether or not there ought to be
what's, in effect, a form of disclosure made by the Council
prior to the appellants responding to requests for
particulars.  There was some resistance to that by the
Council's representative.  The Council is also implicated in
the proposed directions as to disclosure to occur late next
month.

I think it is a sound approach that the assessment manager
ought to make its file available.  There is realistic
possibility that, in the circumstances of this case, where a
number of years elapsed before the Council made its final
decision, there may be information which assists the parties
to identify issues that ought to be ventilated in the appeal.

I have opted to leave in the order paragraph 6, by which the
Co-respondent developer in the submitter appeals is required to serve on the appellant any request for particulars.  There is a technical aspect to this.  There is an existing request for particulars made by Nerang Property Nominees Pty Ltd
(Receivers and Managers appointed) which is substituted as
co-respondent by paragraph 2 of the order.  The named
co-respondent in the submitter appeals is Ticor Developments
Pty Ltd which made the relevant development application, and
with success.  It has assigned to Nerang all its entitlements in respect of the development application.

As Mr Bowie says, there is a technical difficulty in a request
for particulars having been delivered by an entity which is
not yet a party.

Another contentious issue was whether or not the parties ought
to have carte blanche to notify additional issues for several
weeks yet.  Mr Lyons, and also Ms Marshall for the Department
of Transport and Main Roads, which has applied to be added as a co-respondent by election, (and is added by the order), were concerned at facing new issues.

The result is that Mr Bowie's suggestion that any party may
notify additional issues by 8th of April is replaced by a
provision that makes it clear that the court's imprimatur is
necessary for the addition of other issues.

I was against Mr Bowie in respect of his opposition to a
requirement that when the parties nominate and advise their
experts, they indicate which particular issues in the appeal
each expert will be dealing with.  I appreciate that a provision along those lines might cause problems, but I think it is perhaps more likely to be helpful; the situation can also be reviewed if there is any difficulty.

I indulged the Council's representative, Mr McDermott, to the
extent of proposing the Council's premises at Nerang as the
location for a mediation to be conducted by the Registrar,
but qualifying that by allowing the Registrar to nominate some other place after consultation with the parties if that seems more appropriate.  The participation of relevant Council
officers as required in such exercises, perhaps on short notice, is likely to be facilitated if the event occurs close to where those officers are.

I will await draft orders.

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