Stockland Development Pty Ltd v Gold Coast City Council

[2010] QPEC 148

[2010] QPEC 148

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2490 of 2007

STOCKLAND DEVELOPMENT PTY LTD	Appellant
and
GOLD COAST CITY COUNCIL AND ANOR	Respondent

BRISBANE

..DATE 17/11/2010

..DAY 1

ORDER

CATCHWORDS

Integrated Planning Act 1997, s 4.1.47
Planning and Environment Court Rules, r 41(3)

Developer conditions appeal - basis on which appellant should be allowed to "start" its development - Council concerned that conditions at risk extended to all those identified in an amended notice of appeal, not only the four originally appealed against, potentially requiring the undoing of things already done, such as park dedication - Court required filing of amended notice of appeal to clarify limited purpose of references to additional conditions - Council not directed to send to mediation, ordered before the Registrar a person "with authority to settle the appeal" or sign a "mediation agreement"

HIS HONOUR:  The court has made an order in terms of an initialled draft which will advance this now venerable appeal. 

What's been controversial this morning is what the conditions ought to be of an order the court is asked to make under section 4.1.47(2) of the Integrated Planning Act 1997 (IPA).

The real issue in the appeal concerns conditions relating to money charges sought be made for infrastructure in conditions 63 to 66 (both inclusive) set out in a negotiated decision notice of the 6th of August 2007 to facilitate a large-scale residential development known as "The Observatory".

The conditions are now said to be in a "Notice to applicant" dated 16 July 2010 which authorised the production of an additional 16 residential lots.

...

HIS HONOUR: Exhibit 1 is a map (“Observatory Proposal Plan”) produced to the court to give an idea of the development.

...

HIS HONOUR:  The overall development, as indicated, is very large,  what's currently of concern being precincts E, F and G.  Development has been occurring over the years, plans have been sealed to enable individual homemakers to establish homes in the development.  It has all been characterised by a good deal of cooperation between the appellant developer and the Council.

It's now come to be appreciated within the Council that there are some potentially nasty legal problems here given that the pendency of the appeal may mean there is, indeed, no development approval which can be acted upon, the matter having been brought within the purview of the Court.

The Council is not inclined to continue to offer its cooperation in sealing plans and the like with things under a cloud, so to speak, hence this application by the appellant under the section. Section 819 of the Sustainable Planning Act 2009 confirms that the appeal proceeds under the IPA as if the SPA had not commenced.

From the Council's point of view, the legal situation is made more difficult by the amended notice of appeal which adds to the list of challenged conditions (formerly 63 to 66 inclusive) a number of others. 

My reading of the particulars included in paragraph 7 of the amended notice of appeal is that those other conditions are challenged with a view to reference being made to them in support of the contention at the heart of the appeal that the infrastructure charges demanded in condition 63 to 66 are unlawful.  It's the combination that is looked at. 

As the matter of form, however, paragraph 2 of the amended notice of appeal does seek that all the conditions listed be deleted or amended.  It may, more correctly, have described the appellant's intentions to have asked that all of those conditions be considered and that 63 to 66, in particular, be deleted or amended.

Mr Knox, representing the appellant, had prepared a further amended notice of appeal which effected a similar clarification but in a different way.  Mr Fynes-Clinton for the Council indicates that it is happy with the further amended notice of appeal. 

Further, it was contended that it ought to be a condition of the court granting relief under section 4.1.47 that that further notice of appeal be filed and become the operative document in the proceeding.

The Council's concern is that while there is an effective notice of appeal seeking deletion or amendment of conditions that relate to important things, such as road works, dedication of public open space, there is a risk that those conditions may not survive an appeal, indeed, can still be challenged and perhaps to the point that things that have been done may need to be undone.  Land which has been made available as park, for example, under condition 48 may have to be handed back. 

It is not realistic, in my opinion, to contemplate that the appellant has any such outcome in view, indeed, its proposal in the draft order is that it be required to comply with all conditions of the "Notice to applicant" dated 16 July 2010 in starting its development before the appeal is decided.

The line of least resistance is to adopt the approach of requiring the new further amended notice of appeal to be filed.  It does not, in any way, seek the deletion or amendment of the conditions which first attracted specific mention in the amended notice of appeal.

The other matter ventilated today concerned whether the parties, the Council in particular being the one affected, ought to be required to send to a mediation directed before the Registrar a person with authority to settle the appeal or "enter into a binding Mediation Agreement". 

Mr Fynes-Clinton says that the Council has difficulties with a provision of that kind and argues the parties ought to be left to the operation of rule 41(3).  He says (and this fits in with my own understanding) that it's not clear what a Mediation Agreement is, specifically, whether it's something more than a record of what is resolved at a mediation, which may well be that officers representing one side or the other agreed to make recommendations to their principals.

The court saw fit today to emphasise the importance of having a person with a certain amount of authority or influence for the present by requiring that the parties be represented by a person referred to in paragraph A or B of rule 41(3).  That ought to prevent the mediation from being little more than a window dressing or putting in an appearance exercise.  I don't think there ever was a suggestion that that might happen here.

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