Stockland Developments Pty Ltd v Townsville City Council & Dexus Wholesale P/L

[2013] QPEC 8

[2013] QPEC 8

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1212 of 2012

STOCKLAND DEVELOPMENTS PTY LIMITED	Appellant
and
TOWNSVILLE CITY COUNCIL	Respondent

and

DEXUS WHOLESALE PROPERTY LIMITED     Co-Respondent

BRISBANE

..DATE 13/02/2013

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 660

Purported order dismissing a submitter appeal issued by registrar to facilitate application to the Court of Appeal for leave to appeal to it - No order had been made - The purported order did not accord with the court: intentions as set out in the published reasons - purported order vacated and order foreshadowed in reasons made instead

HIS HONOUR:  On the 7th of December 2012 the court published to the parties reasons for its conclusion that the appellant's submitter appeal against the Council's approval of an expansion of the co-respondent's shopping centre should be dismissed.

Paragraph 45 of those reasons made it clear that the approval of the development proposal was to be on the basis of certain identified changes which the parties and the court accepted as permissible or minor.

The appellant, desirous of seeking leave of the Court of Appeal to appeal the decision foreshadowed in the reasons, prevailed upon the Registrar to issue an order in my name on the 25th of January 2013. This involved something of a shortcut given that no order was ever pronounced by me in court which I take to be the requirement for an order under Rule 660(1)(a) of the UCPR. It was not a case of an application “on the papers” under subrule (1)(b).

There was no document signed by me to indicate approval of any draft order.  The action of the Registrar is understandable given that the reasons published to the parties foreshadowing the order that might be made concluded with a statement that the appeal should be dismissed.  Although what occurred suited the appellant's desire to have a formal court order against which appeal processes might be started, it caused consternation to other parties because it breathed life back

into a Council development approval for what is no longer the development proposal.

Plainly, the order ought to be changed.  It did not reflect the court’s intention and, indeed, in my view, was taken out or perfected irregularly. 

The parties have cooperated by agreeing what order ought to be made.  It vacates the order filed on 25th of January 2013 which may be erroneously described as dated 7 December 2012 given that there was no order made or, indeed, in contemplation on that earlier date.

The new order approves the 20 or so changes to the proposal plans and approves the development application on that basis, dismissing the appeal otherwise.  The court makes an order in terms of the draft initialled today. 

It's regrettable that the order vacated came about in the circumstances mentioned without any approach to me so far as I'm aware.  Although on vacation, according to the court's calendar, I was very much about, as was the associate able to receive communications; arrangements could have been made for an order to be made in the usual way.

Order as per initialled draft.

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