Waverley Road Developments Pty Ltd v. Gold Coast City Council

[2009] QPEC 45

[2009] QPEC 45

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P&E Appeal No 439 of 2006

WAVERLEY ROAD DEVELOPMENTS PTY LTD (ACN 116 114 955)	Appellant
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 08/05/2009

ORDER

CATCHWORDS:  Directions made for conduct of two cross-applications and an underlying developers appeal

HIS HONOUR:  The court makes orders in terms of the initialled drafts in Southport Appeal 439 of 2006 and Brisbane originating application 1249 of 2009 which is another proceeding instituted by the appellant - also in the Council's cross proceeding leave to read and file which was given today. 

The appeal is against the Council's issuing a preliminary approval rather than the development permit which the appellant wanted.  The Council has now changed its stance in view of changes that happened in the intervening years and will support a development permit but on certain conditions.  There is an issue between the parties as to whether the Council can have assurance that the conditions it wants will apply, failing which I apprehend the Council may seek to withdraw its support for a development permit. 

Chief among those conditions concerns the Council's ability to levy infrastructure charges on the proposed development and regardless of the outcome of the appeal.  The Court is told that something like $1.5 million extra may be payable to the Council if its view as to how it may charge for infrastructure prevails.  The appellant is seeking by its originating application some assurance in the form of a court determination that the Council is precluded for legal reasons from proceeding as it has indicated it wants to. 

There has been lengthy investigation this morning of what are appropriate directions.  The court's view is that the appellant realistically can not expect a hearing in the June sittings so the directions are now calculated to have the cross originating applications and the appeal heard together in July. 

Mr Quirk for the appellant was resistant to Mr Litster's desire to have something like pleadings in both originating applications.  Each contains in effect a useful statement of claim.  I have vacillated somewhat, but it seemed to me a convenient way to proceed to require the respondent in each to respond with its defence (described in the draft order compendiously as a statement of facts, matters and contention responding to the grounds set out in the originating application, particularising each matter relied on by way of defence). 

I hold concerns, having heard from Mr Quirk, who favoured identification of facts, matters in contentions and the like in some omnibus document - it remains to be seen whether having two separate sets of pleadings as is currently happening may produce the unsatisfactory situation of the two originating applications representing ships that pass in the night, so to speak, so that the court may have a very difficult task resolving matters harmoniously or completely.  There is no direction in this regard but an early further mention has been required when it might be appropriate for the court to order something like a "Scott schedule" or a spreadsheet which will clearly identify in a single document the questions the court has to decide and the contentions of the parties regarding those with appropriate supporting detail and references. 

By that early mention date, 27th of May 2009, Mr Laidley's client ought to have determined what role, if any, to play in the proceedings.  Order as per initialled draft in all three. 

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