Victor G Feros Town Planning Consultants v Cairns City Council, Uscon Pty Ltd and Beachmore Pty Ltd

[1996] QCA 445

IN THE COURT OF APPEAL	[1996] QCA 445
SUPREME COURT OF QUEENSLAND

Appeal No. 3131 of 1996 Appeal No. 3798 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
Ambrose J.

[Victor G. Feros Town Planning Consultants v. Cairns City Council & ors.]

BETWEEN:

VICTOR G. FEROS TOWN PLANNING CONSULTANTS

(Appellant) Appellant

AND:

CAIRNS CITY COUNCIL

(Respondent) Respondent

AND:

USCON PTY LTD and BEACHMORE PTY LTD

(Respondents-by-Election) Respondents-by-Election

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15 November 1996

These two appeals raise the same issue; namely, whether the Planning & Environment Court at Cairns

erred in law in refusing to allow the appellant to add to its grounds of appeal during the hearing of

Planning & Environment Court Appeal No. 9 of 1996 (Cairns Registry).

By application dated 6 November 1995, Uscon Pty Ltd and Beachmore Pty Ltd (“the applicants”)

applied to Cairns City Council (“the Council”) for consent to use land zoned residential at 32-36 Arthur Street, North Cairns for a childcare centre. The appellant, the planning consultant to a company which

would be a business competitor if the applicants succeeded, objected to the application and, when it

was approved by the Council in December 1995, appealed to the Planning & Environment Court on

25 January 1996.

At or prior to the beginning of March 1996, the issues in dispute were identified and various orders and

directions were made and given. The disputed issues contained no reference to a draft planning scheme

which had been prepared and publicly exhibited by the Council in 1994, and subsequently amended to

include what are described as “locational criteria for childcare centres”.

The Council provided the appellant with a list of documents by way of discovery on 7 March 1996 with

a supplementary list on 12 March 1996 and a further supplementary list on 18 March 1996. The list

of documents delivered on 12 March 1996 contained reference to the draft town planning scheme, and

to objections, reports to the Council and minutes relating to the draft planning scheme, including a minute

to amend the draft planning scheme to include the “locational criteria”. The appellant’s solicitors

overlooked the material relating to the “locational criteria” when they inspected the Council’s documents

on 19 March 1996, and it was not until late on 1 April 1996 that the appellant’s legal representatives

became aware of the “locational criteria”.

The Planning & Environment Court hearing had been due to commence that day, but had had to be

adjourned, with the appellant ordered to pay the costs of the adjournment. Even then, only part of the

appellant’s expert witness’s town planning report had been provided to the other parties when the proceeding again came on for hearing on Tuesday, 2 April 1996. During the opening of the case for

the applicants, issues were raised concerning the appellant’s incomplete discovery and the outstanding

balance of its town planning report, which was provided to the other parties later that day after the

hearing had been adjourned to 9.45 a.m. on Wednesday, 3 April 1996.

After the applicants’ opening was completed on 3 April, evidence was called from three of their

witnesses, and one of the appellant’s witnesses who was interposed. Further, reports had been

tendered by both the applicants and the Council which dealt with the “need” for the applicants’ childcare

centre, the “catchment” from which it would derive its custom, and its impact on the amenity of the area

in which it was proposed to be located. The Council’s town planner’s report included reference to the

“locational criteria”, but their relevance to the application was not discussed. It was only when the first

town planning expert was called by the applicants to give evidence at about 12.20 p.m. that the

appellant foreshadowed an application to amend to add an additional ground of appeal related to the

“locational criteria” after the Planning & Environment Court indicated that, without such an amendment,

issues related to the “locational criteria” were outside the ambit of the appeal.

The Planning & Environment Court refused the amendment because it raised an unidentified new “issue

of fact”; in effect it was said that, generally, “it is in the interests of all parties and in the interests of

justice that no new issues of fact should be allowed to be canvassed after the commencement of the

appeal ...”. That cannot be accepted as a correct statement of principle, and there was nothing to

indicate that the applicants and the Council could not have confronted the appellant’s new point without

difficulty; on the contrary, as noted, the Council had made discovery of the material related to the “locational criteria” more than two weeks earlier and its town planner had referred to the “locational

criteria” in his report which had been made available to both the applicants and the appellant prior to

the hearing.

The appellant accepted that the Planning & Environment Court had exercised a discretion against it, but

submitted that it had misconceived the position; in effect, it was argued for the appellant that the material

factual matters were already in issue, that the presence of the “locational criteria” in the Amended Draft

Planning Scheme was not in dispute, and that all the amendment sought to do was to argue the

significance of those “locational criteria” by reference to whatever were found to be the material

circumstances with respect to the applicants’ proposed childcare centre. In such circumstances, it was

said, a proper exercise of the discretion to grant or refuse the application for amendment could only

result in a grant of leave in order to allow the matters really in issue between the parties to be

adjudicated upon. It might, perhaps, have been added, that the Planning & Environment Court should

have had regard to the circumstance that the public, as well as the parties to a particular proceeding,

have an interest in planning decisions.

In our opinion, the exercise of the Planning & Environment Court’s discretion plainly miscarried and the

refusal of the amendment for the reason given was erroneous. However, it does not follow that the

appeals should be allowed. It was accepted for the appellant that that course, accompanied by orders

that the judgment of the Planning & Environment Court in favour of the applicants be set aside and the

appellant be granted leave to amend its notice of appeal to the Planning & Environment Court in

accordance with the application made on 3 April 1996, and that the appellant’s appeal to the Planning & Environment Court be remitted to that Court for rehearing, would only be appropriate if the Planning

& Environment Court had erred in law and there is a real possibility that that error might have affected

the outcome of the proceeding in the Planning & Environment Court.

The issue raised by the appellant’s notice of appeal to the Planning & Environment Court questioned

the need for the applicants’ proposed childcare centre on the subject site, which is zoned residential,

and contended that the proposed childcare centre would have a “detrimental impact on the existing and

future amenity of the surrounding area which is partly developed for residential use and partly

undeveloped [but] ... suitable for residential use”; the issue of “need”, which in its final judgment the

Planning & Environment Court described as “... the only issue upon which there was, in the final

analysis, a substantial dispute”, involved consideration of the “catchment” from which the applicants’

proposed childcare centre would draw its custom. All these matters were canvassed in the Planning

& Environment Court hearing, and resolved in the applicants’ favour in that Court’s judgment. The

proposition that the proposed childcare centre would have an adverse impact on the amenity of the area

was described by the Planning & Environment Court as an issue which was “not pressed with any

degree of force” and rejected. The site, it should be added, is located on a sub-arterial road and near

a railway line and is on the outskirts of the existing residential development in the area although there is

a substantial, but not large, area of adjacent land zoned residential.

The “locational criteria” in the Council’s draft planning scheme have as their express and only purpose

the protection of “the amenity of residential neighbourhoods”. Although the Planning & Environment

Court ignored the “locational criteria” in concluding that there was no Council policy opposed to the establishment of the applicant’s proposed childcare centre on the subject site, it was necessarily

involved in its judgment that the policy behind the “locational criteria” would not be contravened by

approval of the application; it expressly held that the childcare centre proposed would not adversely

affect the “amenity of the residential neighbourhood” and that rejection of the application in order to

protect that amenity was not required or justified.

In our opinion, therefore, the Planning & Environment Court’s error was not of any significance in

relation to its judgment in favour of the applicants.

Accordingly, we would dismiss the appeals. However, having regard to the error by the Planning &

Environment Court at the instigation of the Council and the applicants, we would make no order for

costs in relation to the appeals.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3131 of 1996 Appeal No. 3798 of 1996

Brisbane

[Victor G. Feros Town Planning Consultants v. Cairns City Council & ors.]

BETWEEN:

VICTOR G. FEROS TOWN PLANNING CONSULTANTS

(Appellant) Appellant

AND:

CAIRNS CITY COUNCIL

(Respondent) Respondent

AND:

USCON PTY LTD and BEACHMORE PTY LTD

(Respondents-by-Election) Respondents-by-Election

Fitzgerald P.
Davies J.A.

Ambrose J.

Judgment delivered 15 November 1996

Judgment of the Court

APPEALS ARE DISMISSED.

NO ORDER MADE AS TO COSTS.

CATCHWORDS:	PLANNING AND ENVIRONMENT APPEAL - whether appellant should be allowed to add to its grounds of appeal during and Planning and Environment Court appeal - whether the Planning and Environment Court’s discretion miscarried - considerations relevant to the exercise of the Court’s discretion in allowing/refusing an application for amending grounds of appeal - whether an error by the Planning and Environment Court was of such significance that the appeal to this Court should be allowed.
Counsel:	Mr P. Lyons Q.C., with him Mr A. Innes for the appellant. Mr J. Haydon for the respondent. Mr W. Cochrane for the respondents-by-election.
Solicitors:	Williams Graham and Carman for the appellant. MacDonnells for the respondent. Miller and Harris for the respondents-by-election.
Hearing Date:	5 November 1996