Surfing World Sunshine Coast Pty Ltd v Sunshine Coast Regional Council

[2014] QPEC 41

PLANNING & ENVIRONMENT COURT OF QUEENSLAND           

CITATION:

Surfing World Sunshine Coast Pty Ltd v Sunshine Coast Regional Council & Ors [2014] QPEC 41

PARTIES:

SURFING WORLD SUNSHINE COAST PTY LTD
ACN 096 449 428
(appellant)
v
SUNSHINE COAST REGIONAL COUNCIL
(respondent)

CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT AND MAIN ROADS

(first co-respondent)

MIKE R COLEMAN

(second co-respondent)

DEVELOPMENT WATCH INC

(third co-respondent)

ROWAN BERNARD STANLEY

(fourth co-respondent)

FILE NO:

3612 of 2009

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court at Brisbane

DELIVERED ON:

Judgment delivered ex tempore 7 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2014

JUDGE:

Everson DCJ

ORDER:

1. Application allowed.
2. The respondent be granted leave to add a new issue in the appeal that conflict with the Sunshine Coast Planning Scheme 2014 warrants refusal of the subject development application.
3. Trial dates vacated. 
4. The matter be set down for a further directions hearing on 21 August 2014. 
5. The respondent pay the appellant’s costs of and incidental to this application on the standard basis. 
6. The respondent pay the appellant’s costs thrown away as a consequence of the addition of the new issue and the vacation of the trial dates on the standard basis.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION – where the respondent seeks leave to add a new issue in the appeal that conflict with the respondent’s 2014 planning scheme is such as to warrant refusal of the development application the subject of the appeal – where the respondent’s new planning scheme came into effect 21 May 2014 – where the appeal was filed in 2009 –where the issues in dispute were identified in an order dated 9 April 2010 - where the appeal has been reviewed three times since the scheme came into force – where the respondent has not previously sought to amend the issues in dispute or raise any Coty type argument prior to the 2014 planning scheme coming into effect – whether the sufficiency of any grounds can be raised and tested without reference to the 2014 planning scheme

AON Risk Services Australia Limited v Australia National University (2009) 239 CLR 175, distinguished.

COUNSEL:

R S Litster QC, with N J Kefford for the appellant
M A Williamson for the respondent

SOLICITORS:

McCullough Robertson for the appellant
Sunshine Coast Regional Council Legal Services for the respondent
No appearance for the co-respondent
No appearance for the first co-respondent
No appearance for the second co-respondent
No appearance for the third co-respondent
No appearance for the fourth co-respondent

1. This is an application seeking an order that the respondent be granted leave to add a new issue in the appeal that conflict with the respondent’s 2014 planning scheme is such as to warrant refusal of the development application the subject of the appeal. 

1. The respondent’s 2014 planning scheme came into effect on 21 May 2014.  The appeal predates it by a considerable margin.  The appeal was filed in 2009, and the issues in dispute were identified by me in an order dated 9 April 2010.  The issues in dispute have not been revisited since this time.  Most relevantly, despite three review hearings in respect of this appeal since the 2014 planning scheme came into force, at no time has the respondent sought to amend the issues in dispute to raise a conflict with the 2014 planning scheme. 

1. Mr Williamson, who appears for the respondent, candidly concedes that the application seeking to raise the additional issue is very late, and he can offer no explanation for the delay in raising it.  As to the lateness of the application, the site inspection took place the day before yesterday and the evidence is due to begin the week after next.

1. At first blush, the circumstances of the application bear a disturbing similarity to those the subject of the decision in AON Risk Services Australia Limited v Australia National University (2009) 239 CLR 175. In particular, I note that one of the matters relevant to determining whether or not an amendment to pleadings should be granted was held by the High Court to be the provision of some explanation for the delay in seeking the amendment. Further, Mr Litster submits that at no point did the respondent raise any Coty type argument prior to the 2014 planning scheme coming into effect. In the circumstances, the conduct of the respondent in failing to notify an issue in dispute in terms of either the draft 2014 planning scheme or the 2014 planning scheme until now and then not provide any explanation for this is most regrettable.

1. The development the subject of the appeal is for a number of retail uses, including a shopping complex, showrooms and a hardware store in an area which apparently is not expressly contemplated for such development in either the respondent’s former planning scheme or 2014 planning scheme.  Mr Litster readily concedes that the appellant will be seeking to rely upon grounds, matters of public interest, to justify the approving of the development application despite any conflicts with the former planning scheme.  Mr Williamson submits that in endeavouring to consider such arguments it will be necessary to have regard to the 2014 planning scheme.  In particular, he points out that the need argument that will be advanced at the hearing of the appeal by the appellant will proceed on the basic assumption that there must be in existence a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not being met or adequately met by the scheme in its present form.  This argument will need to focus on the 2014 planning scheme, in his submission.  Similarly, he points to a provision in the joint planning report, which is exhibit 2 before me, where the planning consultant engaged by the appellant asserts that the former planning scheme has been overtaken by events relevant to the retail and commercial hierarchy and the present intent for the development site.  It seems to me that such an assertion will need to be tested by reference to the 2014 planning scheme. 

1. Although I have great sympathy for the appellant and am very critical of the conduct of the respondent in seeking to raise conflict with the 2014 planning scheme at such a late stage, I find it difficult to contemplate how the arguments that there are sufficient grounds to justify approval of the proposed development, despite the conflicts, can be adequately tested in the absence of reference to the 2014 planning scheme.  It is only because the 2014 planning scheme seems to me to be integral to the process of raising and testing the sufficiency of any grounds that I am minded to approve the application.  It is therefore with great reluctance that I allow the application and order that the respondent be granted leave to add a new issue in the appeal that conflict with the Sunshine Coast Planning Scheme 2014 warrants refusal of the subject development application in the following terms: “a decision to approve the development application would conflict with the Sunshine Coast Planning Scheme 2014.”

1. I order that the trial dates be vacated.  I set the matter down for a further directions hearing on Thursday, 21 August 2014.  I order that the respondent pay the appellant’s costs of and incidental to this application on the standard basis.  I further order that the respondent pay the appellant’s costs thrown away as a consequence of the addition of the new issue and the vacation of the trial dates on the standard basis.