Ugarin P/L v Logan City Council
[2003] QPEC 47
•28 August 2003
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ugarin P/L v. Logan City Council and Anor [2003] QPEC 047
PARTIES:
UGARIN PTY LTD (Appellant)
v.
LOGAN CITY COUNCIL (Respondent)
And
YEN PIN TSENG (Co-Respondent)
FILE NO/S:
BD742 of 2003
CITATION:
Ugarin Pty Ltd v. Logan City Council and Anor
PARTIES:
UGARIN PTY LTD (Appellant)
v.
LOGAN CITY COUNCIL (Respondent)
And
RICHARD CHEN and YUNG CHON PTY LTD (Co-Respondent)FILE NO/S:
BD1of 2003
CITATION:
Ugarin Pty Ltd v. Logan City Council and Anor
PARTIES:
UGARIN PTY LTD (Applicant)
v.
LOGAN CITY COUNCIL (First Respondent)
And
YUNG CHON PTY LTD (Second Respondent)FILE NO/S:
BD1447 of 2003
DELIVERED ON:
28 August 2003
DELIVERED AT:
Brisbane
HEARING DATE:
11, 20 August 2003
JUDGE:
Robin DCJ
ORDER:
Further disclosure by respondent Council ordered Application for striking out of parts of Notice of Appeal in 742/03 refused
CATCHWORDS:
DISCLOSURE – planning appeal - contentious documents relate to drafts of Council's future planning scheme – drafts not endorsed in any way by Council, also undergoing continuing changes – whether documents “relevant” to issue of whether planning grounds existed to justify approval of development application notwithstanding conflict with existing Planning Scheme – Council made available its consultant’s Economic Strategy Report recommending applicant’s land be “Core retail”, which potentially assisted appellant’s case under the “Coty” principle – whether Council's engagement of solicitors to advise on drafts attracted legal professional privilege protecting the drafts – whether any such privilege was waived in respect of draft sent to and documents received from Department of Local Government and Planning – unsuccessful cross-application to strike out parts of Notice of Appeal allegedly “adding words” to planning policies or raising a “best site” argument – Uniform Civil Procedure Rules, rule 211
COUNSEL:
D Gore QC with R Litster for Ugarin P/L (on 11 August 2003), D Gore QC for Ugarin P/L (on 20 August 2003)
J Huston for Logan City Council (on 11 August 2003),
P Lyons QC with J Huston for Logan City Council (on 20 August 2003)
B Job for Tseng, Chen and Yung Chon P/L,SOLICITORS:
Stephen Goodfellow for Ugarin P/L
Corrs Chambers Westgarth for Logan City Council
Deacons for Tseng, Chen and Yung Chon P/L
The contentious matters before the court are an application by Ugarin Pty Ltd for disclosure of documents against the respondent Council (originally made before me on 11 August 2003 on short notice and without formal application, rendering appropriate adjournment to permit the Council to consider its position and bring in senior counsel) and an application by the Council for the striking out of certain grounds in the Notice of Appeal in Ugarin’s submitter appeal in BD742 of 2003. In the other appeal, and in the 2002 Application, directions have been made by consent of all parties on 20 August 2003 to advance proceedings towards a projected hearing in the October pool.
The underlying controversy concerns a shopping centre known as Marsden Park located on the northern side of Chambers Flat Road. Ugarin wishes to construct a new shopping centre on its site directly opposite on the southern side of Chambers Flat Road. Yen Pin Tseng, Richard Chen and Yung Chon Pty Ltd are associated with Marsden Park; through their counsel, Mr Job, they have supported the positions taken by the Council.
Ugarin appeals against the Council’s deemed refusal of its development application in Appeal 1 of 2003. It is an appellant submitter in Appeal 742 of 2003, in which it challenges the Council’s approval of a considerable expansion of Marsden Park. In Application 1447 of 2002 Ugarin seeks declarations regarding a 1985 application and following events with a view (as I understand it) to challenging the initial and/or continuing efficacy or relevance of approval(s) given.
There has been some refinement of the categories of documents which Ugarin hopes to compel the Council to disclose. Broadly (although other disclosure may be sought when and if references to other documents emerge), Ugarin wants access to drafts of the Council's Planning Scheme which will replace the existing pre-IPA (Integrated Planning Act 1997) Scheme. In planning law, the “Coty” principle, stemming from Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, whereby identified forthcoming changes in planning arrangements may serve to embarrass or assist particular development applications, is well established. Again and again, in this court, consideration has been given to whether the principle applies, although there are circumstances in which it cannot (cf Mirbelia Street Action Group v. Brisbane City Council,[2003] QPEC 043, BD 548 of 2003, 21 August 2003 at [14]).
It is unusual, in my experience, in a case such as the present where processes leading to a new planning scheme are (certainly they ought to be) well advanced, to have nothing disclosed by way of documents embodying possible new planning arrangements. The original deadline for local governments to finalise IPA compliant planning schemes has long expired. I am told that a limited extension until a date next year has been granted. The respondent Council's processes have been underway since 1999.
Mr. Gore Q.C. (for Ugarin) placed emphasis on Schedule 1 of the IPA which in its original form provided:
“ SCHEDULE 1
PROCESS FOR MAKING OR AMENDING
PLANNING SCHEMESsection 2.1.5(2)
PART 1—PRELIMINARY CONSULTATION AND
PREPARATION STAGEResolution to prepare planning scheme
1.(1) A local government, by resolution, may propose to prepare a
planning scheme.(2) In this schedule (other than in a provision specifically referring to an amendment of a planning scheme), a reference to a planning scheme includes a reference to an amendment of a planning scheme.
Local government may shorten process for certain amendments
2.(1) This section applies if a local government proposes to prepare an amendment of a planning scheme, and at least 1 of the following applies—
(a) the local government is satisfied there has already been adequate
public consultation about the matter, the subject of the proposed
amendment;(b) the local government is satisfied the public interest would not be
served by consulting about any proposal for preparing the
amendment;(c) the amendment is a minor amendment of the planning scheme.
Example of paragraph (a)—
A local government may decide there has been adequate public consultation about a matter the subject of a proposed amendment if the matter arose as a result of the recommendations of a regional planning advisory committee, and the regional planning advisory committee had publicly consulted about the matter before making its recommendation
Example of paragraph (b)—
A local government may believe it needs to change the parking standards applying to a particular form of development because parking demand has exceeded that reflected in the original planning scheme. Because of the limited options for dealing with the matter, the local government may decide that no public interest
would be served by publicly consulting about any approach to preparing the amendment.(2) If this section applies because of subsection (1)(a) or (b), the local government—
(a) if the section applies because of section 2.2.18(4) of the
Act—must start the amending process at section 9(2); or(b) if paragraph (a) does not apply—need not comply with sections 3
to 8 and may also start the amending process at section 9(2).(3) If this section applies because of subsection (1)(c), the local
government need not comply with sections 3 to 8 or sections 10 to 18Statement of proposals for preparing planning scheme
3.(1) The local government must prepare a statement of its proposals for preparing the planning scheme.
(2) In particular, the statement must—(a) identify matters the local government anticipates the planning scheme will address; and
(b) state how the local government intends to address each core
matter (including its component parts) in preparing the planning
scheme.(3) The local government must give a copy of the statement to the chief executive and to each adjoining local government.
Core matters for planning schemes
4.(1) The following are “core matters” for the preparation of a planning scheme—
(a) land use and development;
(b) infrastructure;
(c) valuable features.(2) In subsection (1)(a)—
“land use and development” includes the following—
(a) the location of, and the relationships between, various land uses;
(b) the effects of land use and development;
(c) how mobility between places is facilitated;
(d) accessibility to areas;
(e) development constraints (including, but not limited to, population and demographic impacts).
(3) In subsection (1)(c)—
“valuable features” includes the following—
(a) resources or areas that are of ecological significance (such as
habitats, wildlife corridors, buffer zones, places supporting
biological diversity or resilience, and features contributing to the
quality of air, water (including catchments or recharge areas) and
soil);
(b) areas contributing significantly to amenity (such as areas of high
scenic value, physical features that form significant visual
backdrops or that frame or define places or localities, and
attractive built environments);
(c) areas or places of cultural heritage significance (such as areas or places of indigenous cultural significance, or aesthetic,
architectural, historical, scientific, social or technological
significance, to the present generation or past or future
generations);
(d) resources or areas of economic value (such as extractive deposits, forestry resources, water resources, sources of renewable and non-renewable energy and good quality agricultural land).
Public notice of proposal
5.(1) After complying with section 3, the local government must publish, at least once in a newspaper circulating generally in the local government’s area, a notice stating the following—
(a) the name of the local government;
(b) that the local government has prepared a statement of its proposal to preparing the planning scheme and that the statement is
available for inspection and purchase;(c) a contact telephone number for information about the statement;
(d) that written submissions about any aspect of the proposal may be
made to the local government by any person;(e) the period (the “preliminary consultation period”) during
which the submissions may be made;(f) the requirements for making a properly made submission under
this part.(2) The preliminary consultation period must be for at least 40 business days after the notice is first published under subsection (1).
(3) For all of the preliminary consultation period, the local government must display a copy of the notice in a conspicuous place in the local government’s public office.
Public access to statement of proposal
6. For all of the preliminary consultation period, the local government must have a copy of the statement of proposal available for inspection and purchase.
Consideration of all submissions
7. The local government must consider every properly made
submission about the proposal.Minimum requirements for consultation
8. Sections 5, 6 and 7 state the minimum requirements for consultation with the public about the statement of proposal, but are not intended to prevent additional consultation.
Resolution proposing planning scheme
9.(1) If a local government has followed the process stated in section 1 and sections 3 to 8, the local government, by resolution, must—
(a) propose a planning scheme; or
(b) decide not to proceed with the preparation of the proposed
planning scheme.(2) If section 2 applies to a proposal under this schedule, the local
government, by resolution, must propose an amendment of its planning scheme.(3) If the local government makes a resolution under subsection (1)
or (2), the local government must give the Minister a copy of the proposed planning scheme”
At the risk of being unhelpfully repetitive, since it was not clarified what version of the Schedule was relied on (or applicable at relevant times), I set out here the current Part I:
“Reprinted as in force on 1 July 2003
(includes commenced amendments up to 2003 Act No. 28)PROCESS FOR MAKING OR AMENDING PLANNING
SCHEMESsection 2.1.5
PART 1—PRELIMINARY CONSULTATION AND
PREPARATION STAGE1 Resolution to prepare planning scheme
(1) A local government, by resolution, may propose to prepare a
planning scheme.
(2) In this schedule (other than in a provision specifically referring to an amendment of a planning scheme), a reference to a planning scheme includes a reference to an amendment of a planning scheme.2 Local government may shorten process for amendments to
planning schemes(1) Sections 3 to 8 do not apply to an amendment of a planning scheme.
(2) Sections 10 to 18 also do not apply if the amendment is a minor
amendment.3 Statement of proposals for preparing planning scheme
(1) The local government must prepare a statement of its proposals for preparing the planning scheme.
(2) In particular, the statement must—
(a) identify matters the local government anticipates the planning
scheme will address; and(b) state how the local government intends to address each core
matter (including its component parts) in preparing the planning
scheme.(3) The local government must give a copy of the statement to the chief executive and to each adjoining local government.
[NOTE - Section 4 has disappeared from reprint No.4N consulted electronically, although it appears in the paper Reprint No.4, Essentially a definition section, it was omitted by No 100 of 2001 s82(2)]
5 Public notice of proposal
(1) After complying with section 3, the local government must publish, at least once in a newspaper circulating generally in the local government’s area, a notice stating the following—
(a) the name of the local government;
(b) that the local government has prepared a statement of its proposal
for preparing the planning scheme and that the statement is
available for inspection and purchase;(c) a contact telephone number for information about the statement;
(d) that written submissions about any aspect of the proposal may be
made to the local government by any person;(e) the period (the “preliminary consultation period”) during
which the submissions may be made;(f) the requirements for making a properly made submission under
this part.(2) The preliminary consultation period must be for at least 40 business days after the notice is first published under subsection (1).
(3) For all of the preliminary consultation period, the local government must display a copy of the notice in a conspicuous place in the local government’s public office.
6 Public access to statement of proposal
For all of the preliminary consultation period, the local government must have a copy of the statement of proposal available for inspection and purchase.
7 Consideration of all submissions
The local government must consider every properly made submission about the proposal.
8 Minimum requirements for consultation
Sections 5, 6 and 7 state the minimum requirements for consultation
with the public about the statement of proposal, but are not intended to prevent additional consultation.9 Resolution proposing planning scheme
(1) If a local government has followed the process stated in section 1 and sections 3 to 8, the local government, by resolution, must—
(a) propose a planning scheme; or
(b) decide not to proceed with the preparation of the proposed
planning scheme(2) If section 2 applies to a proposal under this schedule, the local
government, by resolution, must propose an amendment of its planning scheme.(3) If the local government makes a resolution under subsection (1)
or (2), the local government must give the Minister a copy of the proposed planning scheme.”
There follow Part 2 – Consideration of State Interests and Consultation Stage and Part 3 – Adoption Stage.
A recent search of what is presumably the Council's website produced the following information:
“Progress with the Drafting of the New Planning Scheme
The planning process to prepare a new planning scheme involves the identification of issues, compilation of a Statement of Proposals which describes how Council intends dealing with these issues, community consultation on the Statement of Proposals and drafting the final plan.
The Statement of Proposals for Logan’s new planning scheme went on public display during the latter half of 1999. This enabled the community to become involved in the preparation process of the Draft New Planning Scheme at an early stage. This stage of formal consultation ended towards the end of 1999 and a number of submissions have been received for consideration in the drafting process.
Since then Council commissioned consultants to prepare four planning scheme strategies to determine direction for integration into the new planning scheme. The drafting of the new planning scheme will be finalised after the results from the various planning strategies have been integrated. The final stage will involve the submission of the Draft New Planning Scheme to the Minister for Local Government and Planning for consideration of state interests and the subsequent public display of the document. This is the second formal opportunity in the process determined by the Integrated Planning Act to obtain submissions from the community and interest groups on new planning schemes.
It is proposed that the draft new planning scheme be ready for consideration of state interests and advertising during 2002/03.
_top
Drafting New Planning Scheme Strategies
In addressing the issues identified in the Statement of Proposals, the preparation of a series of planning strategies for incorporation into the new planning scheme was recommended. The major planning strategies that will form the building blocks for the new planning scheme are the:
·Economic Strategy
·Residential Strategy
·Social Strategy
·Vegetation Management Strategy
Upon completion of these strategies, they will be balanced and integrated in a process striving to achieve ecological sustainability. This will set the strategic direction for development in Logan City as it relates to the new planning scheme.”
[10] That information was contained in an exhibit to the affidavit of Mr. Somerville, a licensed surveyor and consultant to Ugarin in this matter. He deposed to attending a public meeting in September 2002 at which the Council's Head of Strategic Planning advised preparation of a draft planing scheme had been going on for three to four years and exhibited a copy of a letter of 23 May 2003 sent to him by the Crime and Misconduct Commission:
“Re: Complaint about Councillor John Grant
As you are aware, the Crime and Misconduct Commission (“CMC”) has received a complaint concerning allegations of the possible unauthorised release of confidential information in the form of a draft copy of the Logan City Council's new IPA Planning Scheme by Councillor John Grant to a developer, Mr. Colin Street, or to Ms Deborah Manendis or you as his agents. Concerns were also raised about Mr. Street utilising this information when making a material change of use application to the Council and when the draft Planning Scheme had not been released for public comment.
The CMC has completed its investigation of the complaint and, on the basis of that investigation, is of the view that the allegations have not been substantiated. As you were interviewed by officers of the CMC in relation to the allegations I thought it appropriate to advise you of the CMC’s determination.
Thank you for your assistance in relation to this matter.”
That communication may provide some insight into why the present contest is so keen.
While Ugarin’s quest for documents which might advance its own development application or provide a basis for challenging the approved expansion of Marsden Park may have seemed a fishing exercise, that there are such documents has now been established by the recent provision (accompanied by a denial of its relevance) of the Economic Strategy referred to on the Council's website. Extracts became Exhibit 1. The document has been prepared by Abnett Consulting. In s.6.10 Expansion or Adjustment of Existing Business Activity Nodes (BANs) and Existing Commercial Areas is the following entry:
“Marsden Minor BAN. Map 7 below indicates the following:-
·The expansion of this Minor BAN into adjoining lands and the re-arrangement of internal boundaries within this Commercial Centre in relation to Core and Frame activities.”
(Map 7 shows Ugarin’s site with Marsden Park as Core Retail.)
Section 7.4 New Planning Scheme Provisions (in the Economic Strategy Report) begins with 7.4.1 Desired Environmental Outcomes and goes on to 7.4.2 Measures and includes the following:
“Marsden
This is the largest of the minor BAN’s and is dominated by standard retailing with a very small presence of showrooms and superstores. There is potential for this retail node to expand in standard retailing and become a node of district scale, by servicing the southern suburbs of Logan City. The expansion of this node should be accommodated.
The commercial component of this node is of a district scale and is the largest in the southern part of Logan City. Given its centrality to the southern suburbs, it should be allowed to expand to provide a higher level of commercial services to the surrounding community.”
Council relied on the affidavit of Mr. Shaw who says that in his capacity as Development Assistant Manager for the Council, he has “been involved with the preliminary consultation and preparation stage of the new Planning Scheme” and gives this account of progress:
“3 In or about August 2002, the Respondent instructed Corrs Chambers Westgarth, solicitors (“Corrs”), to assist the Respondent in reviewing an incomplete working draft of the IPA planning scheme prepared by Gutteridge Haskins & Davey Pty Ltd (“GHD”).
4. At the same time as Corrs had been instructed to review the GHD working draft, an internal review by officers of the Respondent of the GHD working draft was conducted.
5. During September and October 2002, Corrs provided advice (which included recommendations) in respect of the GHD working draft. The advice from Corrs was the subject of further consideration, review and assessment of the then working draft by GHD and relevant Council officers.
6. Corrs’ involvement in the review and preparation of the planning scheme has increased and intensified during 2003, in the knowledge that the Respondent is required to introduce its IPA planning scheme by June 2004. The Respondent, however, is anxious to ensure that the IPA planning scheme comprehensively addresses its planning concerns. Corrs’ involvement has been the provision of detailed legal advice for the preparation of the draft planning scheme. GHD became progressively less involved in the preparation of the draft planning scheme with their involvement now limited to certain specified areas.
7. There have been numerous amendments, revisions and changes to the working draft. In May 2003 the working draft was approximately 800 pages in length. A more recent version is approximately 600 pages in length. The draft has changed almost daily, with some of the changes being quite substantial. In its present form, the working draft is by no means final. I am involved in weekly meetings with Corrs in relation to ongoing changes.
8. No draft of the planning scheme has been considered by, or put to, any committee of the Respondent or adopted or proposed by the Council.
9. Since September/October 2002, the preparation of the draft planning scheme has been based on advice obtained from Corrs for that purpose and by 2003 the working drafts were only prepared by Corrs or in accordance with Corrs’ advice. From late 2002/early 2003 any other draft documents relating to the draft planning scheme prepared by Council officers or other consultants (on Council’s behalf) have been prepared only for the purpose of submission to Corrs for review by them and advice.
10. The Respondent claims privilege in respect of documentation prepared by Corrs in the course of advising on the preparation of the draft planning scheme and documentation prepared by Council or its consultants for the purpose of obtaining that advice. Since approximately late January 2003 the working draft of the planning scheme, amendments thereto and associated documentation come within the scope of that claim of privilege. Since approximately August 2002 significant parts of the working draft and related documentation also come within the claim of privilege.
11. Documents circulated to Councillors (where appropriate), Council officers, staff, solicitors or other consultants have been circulated on the basis that they were confidential. In the case of documents circulated by the Respondent this confidentiality was expressly designated by stamping the document to that effect. To my knowledge it was the expectation of the Respondent’s officers that the documents to which I will later refer which were submitted to the Department of Local Government and Planning, were submitted on the basis that they were confidential and their contents would not be released to others.
12. I crave leave to refer to the Affidavit of Christopher John Schomburgk, sworn in proceedings number BD742 of 2003 on 19 August 2003, a copy of which has been provided to me. In relation to the matters referred to in to paragraph 4 of that Affidavit, I say as follows:
(a)I am aware that in early 2003, the Respondent forwarded documentation pertaining to the planning scheme to the Department of Local Government and Planning (“the Department”);
(b)The documentation forwarded to the Department was not a complete or comprehensive draft planning scheme but contained parts of the then working draft of the planning scheme addressing some, but not all, matters associated with the draft planning scheme. The intention was to obtain the Department’s input on the structure and form the planning scheme was to take, which would assist in the continued development and preparation of the working draft;
(c)The Council received comments from the Department on those parts of the working draft that had been referred to it;
(d)Meetings and discussions with the Department have continued throughout the preparation process in relation to different parts of the working draft.
(e)While not aware of the basis for the expectation of Mr Boddington, based on my involvement in the preparation of the draft planning scheme, the planning scheme will not be forwarded to the Department in four to five weeks. Although every effort is being made to finalise the draft planning scheme for adoption by Council and forwarding to the Department for the State interests check, I am unable to identify a firm date by which a draft planning scheme might be finalised, as the process of drafting and review is still on going. My best estimate is that a draft planning scheme will be able to be sent to the Department prior to the end of this year. ”
Mr. Gore calls for disclosure of the drafts referred to in paras. 3, 7 (two of them) and 12(b). He seeks also the departmental comments referred to in 12(c), the Council Resolution under s.1(1) of IPA Schedule 1, the ‘Statement of Proposals” within s.3, any submissions that came in under s.5 “insofar as they relate to the planning of retail facilities at Marsden” and the project brief to Abnett Consulting relating to the original of Exhibit 1. Some refinement of the kind offered in relation to submissions is appropriate. This should be by reference to existing or potential retail areas in Marsden, including Ugarin’s site and Marsden Park, but some extension to bring in general principles relating to retail areas in the City would be appropriate. Although Mr. Gore suggested a “Fielder Gillespie” order (see Ex parte Fielder Gillespie Limited (1984) 2 Qd.R. 339), with which Mr. Lyons Q.C., for the Council, indicated he would be content if the Council failed on the main issue, it would be both unnecessary and inappropriate that there be disclosed in the context of the present three proceedings material from or relating to any draft Planning Scheme which might be seen as commercially sensitive in relation to other sites in the City.
What must be disclosed is now indicated by Uniform Civil Procedure Rules r.211, namely documents “directly relevant to an allegation in issue”. In Robson v. REB Engineering Pty Ltd (1997) 2 Qd.R. 102, 105, in one of the few discussions of the topic, Demack J said:
It will take many decisions to work out the full implications of the new wording. My opinion is that the word ‘directly’ should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, ‘directly relevant’ means something which tends to prove or disprove the allegation in issue.”
Challenged to identify the “issue”, Mr. Gore pointed to the Council have positively asserted in grounds of opposition to the “deemed refusal” appeal that there are no sufficient planning grounds to approve Ugarin’s application despite the conflicts with planning arrangements there identified. He said:
“We’ve joined issue with that. Obviously it has to be our case that there are sufficient planning grounds to approve, notwithstanding the conflict. That’s the issue to which the documents are relevant … we can’t say whether the draft scheme will advance our case or hinder our case on that issue. If it hinders our case it is still relevant … we can’t possibly …. make the positive allegation that the draft planning instruments support our case … until we know what the draft instruments say, and it would be improper for a legal practitioner to make such a positive allegation simply to somehow flush out disclosure.”
In a subsequent written submission he advised:
“that issue is created by paragraph 7 of the Council’s amended grounds for refusal of 1 August 2003[1], and arises under s.4.4(5A) of the P&E Act, (Local Government (Planing and Environment) Act 1990), which is made applicable to Ugarin’s application by s. 6.1.30(3)(a) of IPA.
[1] Affidavit of SF Goodfellow ex SFG1 at p 33’ see also p 14, where the co-respondents adopt those grounds
I reject Mr. Gore’s contention that the Council has conceded relevance by advancing a claim to legal professional privilege. While the usual context may be one in which documents for which privilege is claimed are conceded to be relevant, I see no problem here about the Council's advancing, as it does, the alternative arguments that (a) the documents sought are irrelevant to the issue identified and (b) if (a) is wrong, legal professional privilege protects the documents from disclosure.
Mr. Lyons, in addition to his arguments as to lack of an identified issue (which I reject), irrelevance of the documents sought to the issue and legal professional privilege, sought to capitalise on a certain amount of chopping and changing on the part of Ugarin’s legal representatives as to what documents they were after. If there is any element of indulgence needed here, then in a fast-moving situation I am willing to extend it. I fail to see why it should matter that, until very recently, no point has been made about the Council’s resolution, statement of proposals and submissions attracted by them, still less communications from the Department, the existence of which has only very recently come to light.
Mr. Gore, without being critical, drew attention to a certain lack of harmony between the Council’s procedures and IPA Schedule 1, in which, for example, the Department has been approached at an earlier stage than is called for. In the absence of any positive provisions in the law which keep such matters confidential, I would consider documents generated to be liable to disclosure, and would not be disposed to be technical about requiring strict compliance with indicated procedures before steps taken (and documents generated) were regarded as being pursuant to Schedule 1. Mr. Lyons (p.31) appeared to accept that the resolution, statement of proposals and submissions would not present any problems in relation to disclosure (“We simply haven’t had any sensible opportunity to deal with those things”).
Mr. Lyons’ argument as to relevance (p.34), reflecting Mr. Shaw’s language, was that until Schedule 1 procedures reached the Section 9 stage with the local government by resolution proposing a Planning Scheme, preliminary documents of the kind produced to date “simply have no probative value”. He said at p.35:
“…even if it turned out that the draft showed retail on the Ugarin site, we would rhetorically ask, ‘How could a court act on that with a document at the stage it is constantly undergoing revision and yet to receive any acknowledgment, formal acknowledgement, by the Council?’”
Mr. Lyons adopted the court’s suggestion that even if the material were potentially probative it might be mischievous to bring it out – the court might give it completely inappropriate weight, failing to acknowledge there had been no kind of endorsement by the Council - which is the planning authority, not the court. Perhaps encouraged by me (p.38), Mr. Lyons argued that the documents in question, being so preliminary in nature “can’t be directly relevant to the issues before the court … how could something like that assist the court to determine any issue that has appeared properly? There is a risk that something inappropriate might happen (based on such documents) … because it would be mischievous to follow that course, it demonstrates the documents can’t be directly relevant to the issues.”
It seemed to me Mr. Lyons was arguing that the documents sought were irrelevant because no weight could be given to them. In my opinion, what weight they should be given (which may turn out to be none) is something to be determined by the judge hearing the substantive appeals and application. It is not appropriate to speculate that that judge may be distracted in some way from resolving the proceedings properly. Having regard to the practice of the court, and the frequency with which documents of this general kind are considered, I am of the view that they should be regarded as relevant, for present purposes, and should be the subject of disclosure. It does not matter, for present purposes, that suggestions as to what the future might bring which are included in those documents may never amount to anything. Appropriate assessments can be made at the hearing(s). The courts are used in other contexts to making judgments about possible proposals that may or may not become definite proposals, let alone be implemented on the ground. See, for example, Gagliardi v. Lamont (1976) Qd.R. 53, 54.
Mr. Gore foreshadowed (p.45) the kind of submission that might be made at the forthcoming hearing:
“I can say that the Court could give serious consideration to giving that weight if the evidence showed that the Ugarin site had been proposed back in 2000 for inclusion in the BAN and had never been taken out of the BAN in the three years since then because other evidence would persuade the Court, so my argument would be, that the Court would infer that the consultants and the council officers who have been involved in this process have what may be regarded as a high degree of authority vested in them by the council. The council would not allow this process to go on for three or four years if it was going to retain some right to say, “Stop”, after four years, “We’ve got a whole new vision for the local government area. We don’t like anything you’ve said.”
……this is a trial point but I’m foreshadowing it, that a Court could place confidence in a decision which was consistently maintained – or a planning proposal which was consistently maintained by the council officers and the council consultants over such a lengthy period when we know we’ve only got a much shorter period left before time runs out. It is demonstration that the council have, in broad terms, a high expectation that given the time and effort and expense that has gone into the preparation of the draft they won’t be tinkering with it too much.”
Plainly, there will be room for counter arguments. The question should be resolved on a later occasion. In my opinion, all of the documents sought are, in principle, sufficiently relevant to require to be disclosed, but inspection should occur on the protected basis indicated. Mr. Gore conceded that before the coming into effect of the more public procedures embodied in Schedule 1 of the IPA the practice of this court and its predecessors may have been to limit consideration to proposed changes to Planning Schemes which had “crystallised” to the extent of their being put on public display for public comment, as in situations like Lewiac Pty Ltd v. Gold Coast City Council (1996) 2 Qd.R. 266. That stage has not been reached here. I think there should be disclosure nevertheless. An example of introduction into evidence of proposals (in map form) not continued into either the draft version placed on public display or the final version gazetted may be found in Mirbelia Street Action Group Limited v. Brisbane City Council [2003] QPEC 043; BD548 of 2003, 21 August 2003, para. [30].
In a supplementary submission relating to the pre-Schedule I approach, Mr. Gore referred to Somers v. Thuringowa Shire Council (1974) 29 LGRA 298, Ray Donaldson (Holdings) Pty Ltd v. Mount Isa City Council (1976) 37 LGRA 138 and Wonderland Amusement Park Pty Ltd v. Woongarra Shire Council (1982) QPLR 416 regarding the “weight” to be placed on draft documents not yet placed on public exhibition, also to Ingram v. Maroochy Shire Council (1983) QPLR 139, where Carter J said, at 146:
“I mentioned above the statutory review of the town planning scheme and the fact that part of the proposed Strategic Plan was put in evidence. The proposals are currently with the Director of Local Government for his perusal. As yet the proposals have not been exhibited to the public and no public discussion of them has taken place. Obviously therefore the review is at an early stage and its ultimate form remains to be seen. That fact must affect the weight to be given to it on an application of this kind. Certainly the proposals reflect the view of the Council’s consultant planner and must be respected on that account, but the fact remains that, conceivably, significant changes to its present form may occur during the review process. This necessarily affects the weight to be given to it.”
reflecting Mylne DCJ’s comments in Robe v. Calliope Shire Council
(1974) 30 LGRA 1, 2:
The town planning consultant of the Shire has a proposal for zoning of the township which was tendered in evidence but such proposal has not been adopted by the Council. The proposal provides that the appeal site shall be in a residential A zone and that service stations shall be a use with the consent of the Council in all zones. However, as the proposal has not been adopted by the Council and may be amended considerably or completely rejected and as the proposal has not reached the stage of what uses may be conducted in the various zones I can regard it merely as the expression of an opinion by the Council's town planner for a proposed zoning of the township.
I do not read the foregoing as rulings that such preliminary views or opinions can have no weight at all. Much may depend on the particular circumstances.
The Council’s reluctance here to make disclosure of material strikes me as unusual, and curious.
As to the claim to legal professional privilege, I find it similarly curious that a local government supposedly following a Schedule 1 procedure insists on keeping its cards so close to its chest, so to speak, which it might be expected to do in the ordinary course, but would not be expected to persist in once it has a disclosure regime forced upon it in these proceedings. Mr. Lyons submitted the starting point for the court should be the leading judgment in Esso Australia Resources Limited v. The Commissioner of Taxation (1999) 201 CLR 49, at 64-65:
“Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v. Campbell (79), and Grant v. Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v. The Commonwealth, Mason and Wilson Judge Jackson: explained that legal professional privilege is itself the product of a balancing exercise between the competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v. Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a crimina trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations.”
Legal professional privilege can attach to documents containing advice to a government department by its legal advisors relating to the exercise of a statutory power or the performance of a statutory duty or function: Webb v. Commissioner of Taxation (1993) 44 FCR 312.
Mr. Gore relied heavily on what may be seen as a special case, to do with solicitors’ trust account ledgers: Packer v. Deputy Commissioner of Taxation (1985) 1 Qd.R. 275. At 278, referring to Baker v. Campbell (1983) 57 ALJR 749, Andrews SPJ said at 278:
“ At p.778 Dawson J said:
‘Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation. Moreover, if the communication in question is the form of a document submitted by a client to his solicitor for use in existing or anticipated litigation, privilege will attach to it only if it comes into existence solely for that purpose. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation.’
It is now clear that, if legal professional privilege attaches to the ledgers at all it may be availed of here to prevent disclosure to the Deputy Commissioner of taxation requiring such disclosure in the exercise of statutory and administrative powers.
Whether it attaches depends upon whether the documents disclose communications made or brought into existence for the sole purpose of seeking or giving advice or for the sole purpose of use in existing or anticipated litigation.”
continuing on at 279:
“Some discussion occurred during argument as to the possibility that ledgers may be so complied as plainly to contain privileged information beyond what might reasonably be expected in books of account. I would observe that if books kept according to usual procedures contain or refer directly to confidential matters, so as to disclose the subject of a communication for the purposes discussed, then to that extent they are privileged; but that if they are plainly laden with such information so as to demonstrate an intention to contrive a privileged situation, to that extent they are not related to the giving or seeking of legal advice and are not privileged. This is consistent with the view expressed by Deane J in Baker v. Campbell (supra) at p.774 that legal professional privilege does not extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production.”
At 285, McPherson J said:
“The line between a communication which is privileged and an act which is not is no doubt sometimes a fine one and difficult to draw; but, apart perhaps from special instances, there is, to quote gain from the judgment of Dawson J in Baker v. Campbell (supra):
‘No privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation.’
Prima facie at least that seems to me to be so in the case of the trust account ledgers here in question. They are documents prepared by solicitors; but that in itself is insufficient to attract to them a privilege from disclosure unless what they contain are communications, in the sense in which that expression is used here, or records of such communications, made for the purpose of getting or giving legal advice or assistance.”
Shepherdson J said at 294-295:
“Now it seems to me that as trust accounts are not solely within the realm of solicitors one must be careful to ensure that a client is not able to gain legal professional privilege simply by ensuring that a particular transaction passes through a solicitors trust account even though it might well have just as conveniently passed through the trust account of say a stock and station agent or a real estate agent. In other words this Court should be careful to ensure that as a class solicitors trust account ledgers are not to be made a kind of Alsatia for persons who, irrespective of advice from solicitors, have decided to move their moneys in a certain way.”
Those are passages Mr. Gore specifically referred to the court. It would be wrong, on what little is known at present, to regard the Council as having embarked upon an exercise of the kind criticised in Packer. Mr. Gore expressed a determination to cross-examine the Council's solicitor, but resiled from it, so that the court was not required to determine whether or not to permit it. I indicated that, on the limited (and somewhat confused) material available, the solicitors need not fear any adverse comment from the court. I adhere to that position in observing that Mr. Shaw’s affidavit, set out above, almost in full, does tend to smack of a contrivance or clever attempt to provide a basis for claiming legal professional privilege now. I do not accept that the drafts in question, from the very first (Mr. Shaw’s “GHD working draft”) were prepared solely or even principally for the purpose of obtaining legal advice. Reverting to a matter left open in Packer, it does not appear at this stage that any draft vetted by the solicitors would impermissibly reveal the terms of legal advice. In Allen & Hensley v. Deputy Commissioner of Taxation (NSW) (1988) 81 ALR 617 at 628, before citing Packer, Pincus J noted in “recent High Court decisions, ample authority tending against the proposition that documents giving effect to or evidencing transactions carried out on legal advice are privileged.” See, more recently, Cook v. Pasminco Ltd (2000) 111 LGERA 406, 415. I do not rule out that particular features of the documents sought may attract legal professional privilege, but that is a matter for more detailed examination on another occasion. On the face of it, from the description of the documents and what is known of their history and their ultimate grounding in Schedule 1, I am unable to see that legal professional privilege attaches to them as a group.
Mr. Gore had a subsidiary argument that legal professional privilege had been waived, if it did originally exist, in relation to whatever documents were given to and received from the Department. The Council appears to have acted prematurely in involving the Department, if reference is had to s.9(3) of Schedule 1. I have expressed the view elsewhere that this does not matter. No one suggested that the Department or its officers could be regarded as the Council’s solicitor. Therefore, legal professional privilege can be waived or lost in communications with the Department. I do not see how it can be saved, whatever steps may be taken, in a consultative process of the kind apparently embarked upon, by stipulations that everything is “confidential”. I am inclined to think, if it is necessary to decide the point, that there has been a waiver, as claimed. Mr. Gore cited Bayliss v. Cassidy (No. 2) (2000) 1 Qd.R. 464, a case of imputed waiver, especially at 469, where authorities were referred to which recognise a “fairness” test. Although “fairness” is often considered in terms of what is fair to both parties in a dispute, I consider there are circumstances in which it is the litigant whose legal professional privilege may be lost whose claim to “fair” treatment should predominate. I took that approach in Luke v. National Consolidated Investments Pty Ltd [2003] QDC 047, at [17] in particular. I would take that approach here. In all the circumstances, I detect no unfairness in the Council being treated here as having waived privilege to the extent that it gave relevant documents to and received relevant documents back from the Department: cf TH Jensen & Bowers Pty Ltd v. Redland Shire Council [2003] QPEC 044; BD 15/2003, 21 August 2003, at [32].
Strike Out Application
The Council's cross-application made in BD 472/2003 (Ugarin’s submitter appeal) sought striking out of parts of Ugarin’s Notice of Appeal under the heading, Conflict with the Respondent’s Planning Scheme:
“15. The proposal the subject of the Marsden Park Application (“the Marsden Park Proposal”) conflicts with the Industrial, Commercial and Retail Strategy within the Respondent’s Planning Scheme, in particular, Objective 1.8.2 provides “The existing and future demand for industrial, commercial and retail development within the City shall be satisfied”.
16. Relevant to that objective are policies (c), (j), (k), (m) and (o) which provide:
‘(c)Major shopping centres must be established within the Major Retail Centres in accordance with policies (d) – (k) and the relevant District Strategies;
(j)The development of a major shopping centre or the redevelopment or extension of an existing major shopping centre involving an increase in leaseable floor area must be justified by an environmental impact statement which addresses the retail impact of the proposed development.
(k)Council will encourage the redevelopment or replacement of a major shopping centre involving an increase in leasable floor are where the proposed redevelopment or replacement would result in a significant community benefit.
(m)Existing shopping centres with a leaseable floor area in excess of 1,200 square metres may be maintained and the leaseable floor area increased where there is a demonstrated community need and the shopping centre is re-developed and improved.
(o)Existing retail development should be redeveloped and improved to meet shopper preferences.”
17. Polices (c), (j), (k), (m) and (o) are not satisfied in that the Marsden Park Proposal:
(a)is not justified by an environmental impact statement which addresses the retail impact of the proposed development;
(b)will not result in, and has the potential to preclude the realisation of, a significant community benefit;
(c)does not respond to a demonstrated community need;
(d)will not meet shopper preferences.
PARTICULARS
(i)There is an existing community need and demand for a conveniently located second major supermarket and specialty shops in the local area;
(A)to provide the community with choice, price comparison and competition between retailers and increased levels of service;
(B)to promote the efficient and economic upgrading of existing facilities and levels of service;
(C)to efficiently and economically increase the number and variety of specialty shops so as to provide a greater range of goods and services.
(ii)A conveniently located supermarket and associated specialty shops on the Ugarin Site would satisfy that existing community need and demand;
(iii)Shopper preferences support a conveniently located supermarket and associated specialty shots on the Ugarin Site;
(iv)The Marsden Park Proposal has the potential to preclude the rational and orderly provision of services to the community on the Ugarin Site, and thereby the realization of the significant community benefits including:
(A)the provision of choice, price comparison, competition between retailers and increased levels of service;
(B)satisfaction of shopper preferences; and
(C)an otherwise satisfactory and sustainable retail development.
(v)The second supermarket and additional speciality shops comprising, in part, the Marsden Park Proposal do not have convenient and easy access to car parking spaces.
(vi)the second supermarket proposed on the Marsden Park Site is overly large and poorly positioned.
(vii)The proposed extensions to the existing Marsden Park Shopping Centre are likely to exacerbate the existing high vacancy level and poor performance of that Centre.
(viii)The increase in specialty shopping floor area will be unable to be sustained by the Marsden Park Shopping Centre if extended as proposed.
(ix)When extended as proposed, the Marsden Park Shopping Centre will be unlikely to attract:
(A)an additional discount variety store;
(B)a discount department store; or
(C)a department store;
to that centre, yet has the potential to preclude the introduction of those services elsewhere in a location convenient to the community.
(x)There is a deficiency in the number of car parking spaces provided on the Marsden Park Site.
(xi)The Marsden Park Proposal, even if approved, is unlikely to proceed due to the deficiencies identified in these particulars.
18.The Marsden Park Proposal conflicts with the Transportation Strategy within the Respondent’s Planning Scheme and, in particular, the Road Network Objective, which requires that ‘A safe and efficient road network shall be provided within the City’.
19.The relevant policy (e) provides:
(e) Car parking facilities will be required to be provided at the development which generates the demand in accordance with the car parking requirements specified in Part 11 of the Planning Scheme.
20.The Marsden Park Proposal conflicts with policy (e) in that the provision of Part 11 of the Respondent’s Planning Scheme require the provision of 934 car parks whereas only 799 car parks are provided.”
Although on one view the Council’s application attacked para. 17(a), that was not persisted in. The challenge to 17(b) was limited to the words “and has the potential to preclude the realisation of”. Sub-paragraph (c) was sought to be struck out. There was no challenge to (d). The striking out of particulars (i), (ii), and (iv) was sought, likewise, from particular (ix), the words “yet has the potential to preclude the introduction of those services elsewhere in a location convenient to the community.”
It is clear (or has been clarified by correspondence referred to) that 17(b) relates to policy (k) as quoted in para. 16, and that 17(c) relates to policy (m) as quoted in para. 16.
As to the impugned words in 17(b), the objection is that they introduce a concept which is foreign to policy (k) which, of course, says nothing about “potential to preclude the realisation of a community benefit”, in terms. The particulars make it clear that the threatened benefit is something that might be created on the Ugarin site. The Council complains that in this respect the Notice of Appeal “is embarrassing as a particular of the policy”. Mr. Lyons went on:
“In the Notice of Appeal, paragraphs 23 and 24 raise something rather like some of the allegations that we challenge, and we have not attacked paragraph 23 and 24. It is simply … its present form. Those are the submissions about paragraph (b) and (iv)”.
The submission quoted reveals the highly technical nature of the Council’s point. I am not prepared to say, close to the likely hearing of the substantive proceedings, that policy (c) focuses on the narrow question of whether there is “a significant community benefit” if a proposed redevelopment goes ahead without any reference whatever to the implications of the concomitant loss of some competing (or other) development nearby which creates or bodes to create a more significant community benefit. It rather seems that leaving paragraphs 23 and 24 untouched means the same matters will be ventilated at the hearing in any event. It is easy enough to separate out the allegedly extraneous component. I do not apprehend the slightest embarrassment to anyone at the hearing if the Notice of Appeal remains as it is. If Ugarin’s point is a good one, it should get the benefit of it. If it is not a good point, it will get no benefit; from what appears, the other parties will have to present evidence and argument on the issues in any event.
Turning to 17(c), Mr. Lyons argued:
“With respect to policy (m), what the policy provides is that existing centres may increase their leaseable floor area where there is a demonstrated community need and the shopping centre is redeveloped and improved. What is said in paragraph (c) is not that there is no community need, but rather that (the Marsden Park proposal) does not respond to a need … That really seems to be particularised by (ii), so it really seems to be a transposition from what (m) actually says to an argument that it does not respond and Ugarin would better respond, apparently, which in our submission is a distortion of paragraph (m).”
In similar vein, it was contended that particular (iii) relative to 17(d) is directed to something different from what is raised by policy (o), some preference, not for a redevelopment and improvement of an existing centre, but the creation of a new centre, the Ugarin site. Particular (i) was objected to as being “hardly … a particularisation of any of the matters complained of. It simply says there is, in fact, a second major supermarket ..” Again, in my view, an over-technical approach is being taken here. No one could be in any doubt that Ugarin’s case is that its proposal offers superior benefits to the community, better accords with their preferences, better satisfies community needs and so forth. I detect no scope here for confusion, or of any party being at risk of pursuing irrelevant issues or the like.
Correspondence from the Council's solicitors hinted darkly that the appellant was running a “best site” argument, as if that were something that should never be done. For purposes of this interlocutory application, and a sufficient demonstration that the Council's objection ought not to be accepted (however successful it may be ultimately) one need go no further than Green v. Moreton Shire Council (1985) QPLR 328, 330-31, where Judge Quirk said:
“This application was followed within a week or so by an application to enable a similar form of development on another site considerably further to the west. The Respondent, perhaps understandably, made a comparative assessment of the two applications and decided against the one with which we are dealing. Its expressed reasons for refusing this application were:
1.After detailed consideration of the proposal, council has resolved to approve the other commercial re-zoning at the corner of Langlands Street and Junction Road, Karalee. Therefore, another commercial centre would lead to an oversupply of commercial facilities within the area.
2.In assessing the application, council had due regard to the future direction of growth in the Karalee area; the opportunity to congregate other facilities around the shopping centre; the future road hierarchy of the area; and the effect of the shopping centre on the amenity of the immediate area. Using these locational criteria; council is of the opinion that the proposed centre is not suitably located to best suit the future growth of the Karalee area; does not allow for future expansion of community facilities in close proximity to the shopping centre; is not located in an area to best take advantage of the future road hierarchy, particularly the Karalee No.2 distributor; and is so located in an area as to adversely affect the residential amenity of the immediate neighbourhood.”
The Respondent’s approach in dealing with the applications was the subject of some criticism. It was contended that a determination of the application to re-zone the subject land should not have been permitted to develop into a “contest” between the subject proposal and another.
The matter of the competing sites was certainly one which was taken into account, not only by the Respondent and its planning officer, but by other witnesses who gave evidence before me in this appeal. It is true that this Court has, in the past, had occasion to observe that its function is “to determine not whether better sites exist but whether consent should be given for the particular use on the particular site”. (Queensland Adult Deaf and Dub Society v Brisbane City Council 26 L.G.R.A. 380 at 386.) The good sense of this approach is readily seen. It would be quite inappropriate to reject a development application simply on the basis that there exists another site which might prove better suited (from a planning point of view) for the proposed form of development, where it is not clear at all whether that site will be available for that particular form of development.
When, however, it is known that there is, in respect of another site in the same area, an application directed towards a comparable form of development, it would seem to me to be artificial to ignore that fact.
Where a re-zoning is being considered, a matter that should be examined is the question of ”need” as it is understood in a planning sense. As it was put by Carter J. (when a member of this Court) in Indooroopilly Golf Club v Brisbane City Council & Ors. (1982) 2 Q.P.L.R. 13 at p.33:
“The need referred to is generally understood to be the need in the community for a particular facility or type of development such as might justify the re-zoning of land to provide for it.”
If, in a given area, a community need for shopping facilities is identified, and it is also shown that it is unlikely that any site other than the one under consideration can be developed to meet that need, such a matter might add considerably to the combined weight of those factors which favour an approval.
On the other hand, if it is shown that the relevant need of the community is, in the event of a proposal’s being rejected, likely to be satisfactorily met by the development of another site, those factors which tell against an approval may more readily prevail. The town planning exercise involves a consideration and resolution of many (and sometimes conflicting) factors. As I see it, the matter of the competing application is but one of the factors that could be taken into account in considering this application.”
In my own experience in Vynotas Pty Ltd v. Brisbane City Council (2001) QPELR 14, there was a “competing sites” argument in circumstances where a shopping centre owner A was pursuing an adverse submitter appeal against approval of a developer’s proposal for shopping centre B in reliance upon grounds that another approved shopping centre C located some 1.7 kilometres away from the subject site would not be developed if the co-respondent’s proposal went ahead.
On the general topic of concepts of need and benefit (or detriment, which may be seen as a converse of benefit) I would venture a final reference to Mirbelia Street Action Group at [38], where there are collected some judicial comments about the “relative” concept of need in planning terms, including:
“If the provision of a facility which would otherwise advance the physical well being of a community will affect the capacity of residents in that community to enjoy life, then it can in truth be said that there is no need.”
Per Carter DCJ in Skateway Pty Ltd v. Brisbane City Council (1980)
1 APAD 417, 424.
and:
“A use would be needed if it would, on balance, improve the services and facilities available in the locality.”
Per Skoien DCJ in Roosterland Pty Ltd v. Brisbane City Council (1986) 23 APAD 58, 60.
It may well be determined by the judge who hears these proceedings that, in the application of the planning policies set out, both “need” and “benefit” involve similar sophisticated considerations.
It is inappropriate to strike out the impugned parts of the Notice of Appeal in 742/03. The parties are invited to suggest some appropriate form of order for disclosure and inspection.
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