West End Community Association v Brisbane City Council (No 3)

[2011] QPEC 78

[2011] QPEC 78

THE PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 3343 of 2011

WEST END COMMUNITY ASSOCIATION	Applicant
and
BRISBANE CITY COUNCIL & ORS	Respondent

BRISBANE

..DATE 06/06/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350
Planning and Environment Court Rules 2010 r 5, r 27

Submitter appeal - dates for steps to be taken in existing directions extended (against submitter's opposition) - developer's difficulties occasioned by inundation of the site (likely showing that the proposal should be changed) in the flood of January 2011 and by its being placed in receivership - title of co-respondent changed to show that receivers and managers appointed - experts authorized to have contact with those engaging them before producing joint reports to facilitate consideration of possible changes to the development proposal

HIS HONOUR:  The court has made an order in terms of the
initialled draft after the luxury of lengthy argument about
what those orders ought to be.

The appeal is a submitter appeal against a development
approval granted by the respondent council for the carrying
out of building work, that's a preliminary approval, and a
development permit for material change of use for a multiunit
dwelling, shop and restaurant at Lot 2 on Registered Plan
141824.  The site is at 321 Montague Road, West End.

My understanding is that that approval relates to a 12 storey
building containing nearly 500 units representing an expansion
of what is permitted under an earlier approval for the same
site for a similar development of eight storeys with some 70
fewer units.

That approval emerged following an appeal in this court.

The association appellant, I understand, was a party in that
proceeding.  It is in the unusual position for a submitter of
having the potential of advancing its position, which I take
it is one of general opposition to development of the scale proposed, by taking advantage reverses that have befallen the
co-respondent developer company.

One was the January 2011 floods which inundated the site which
the court understands was the location of the former gas
works.  It may well be that the large excavation on the site
was subject to inundation even before the floods mentioned.

I have presided at mentions of the appeal on 18 February 2011 (see 2011 QPEC 36) and 11 March 2011 (see 2011 QPEC 40).

It emerged from what was said at those mentions that the
proposal is likely to require some redesign to take account of
lessons learned in the recent flooding.

One particular respect that was mentioned concerned the
proposal to locate important electrical installations at
basement level, an arrangement that experience in this City
last January indicates is better avoided in tall buildings.

What also emerged at those earlier mentions was that the
co-respondent developer was experiencing financial
difficulties.

The appellant certainly takes the view that the extent of
those was understated.  If that was the case, the appellant's
lay representative Mr Bratchford was able to reveal more of those financial difficulties.

In March hope was still being entertained by the co-respondent
that finance could be obtained from sources in Korea.  It
rather appears that nothing came of that.

The applications before the court today include one by
receivers and managers of the company seeking to have their role in the matter acknowledged by a change in the description of the co-respondent to record in the title that receivers and
managers have been appointed.

There has been a double appointment at the instance of Eastcote Pty Ltd, a finance provider for the developer.

The first appointment occurred at the end of April 2011.  It
was limited to the co-respondent's documentation in relation
to the development application and a wide range of associated
matters to do with the site.

It is easily inferred that the purpose of that limited
receivership was to give the receivers and managers and, no
doubt, the principals of Eastcote the best information they
could get regarding the wisdom of proceeding with the current
development proposal.

Late last month, by an appointment dated 31 May 2011, and
accepted on that date, the receivers and managers were placed in charge of all the present and future rights, property and undertaking of the co-respondent, whether real or personal anywhere and of any kind.

On the next day, the receivers and managers caused the application mentioned above to be filed.

The selection of today for the hearing is explained by Judge
Rackemann's having on 13 May 2011 set down for today the hearing of an application by the appellant for an order that the appeal be allowed and, presumably, on the basis that the co-respondent was not genuinely pursuing it.

Mr Quirk of counsel appearing for the appellant informed me
that the application was made orally.  It is clear that
everyone knew what it was all about.

Judge Rackemann vacated existing directions which required any
steps to be taken before 6 June 2011.

On the two dates mentioned in relation to myself, orders had
been made extending the dates for compliance with Judge
Rackemann's original directions for the conduct of this appeal
of 9 December 2010.

The first extension was by 12 weeks; the subsequent one by a
further four weeks.  Those times were less than Ms Morris, who
appeared for the co-respondent on the days, had been
requesting.

It was an unusual situation, as I already indicated, of a
submitter appellant able to seek what maybe very crucial
tactical advantages by forcing a developer co-respondent
confronting various difficulties on to an earlier hearing.

I am willing to accept that were the boot on the other foot,
so that it was the association seeking to bring about delays
in a timetable set by the court, the association might receive
a short shift in the ordinary circumstances.

The general approach is that developer parties have most
at stake and that delay costs money which developers, other
things being equal, are entitled not to be forced to waste.

This relates not only to legal costs which it became clear on 13 May that the association too is now having to bear; Mr Bratchford who represented the association earlier may well have indicated that he was having to pay for legal advice.  Holding costs of the land are, inevitably, going to trouble a
Developer.  

Although Mr Quirk has submitted, in effect, that all parties ought to be treated equally by the court, from the point of view of being ready to progress an appeal, I am of the view that things, particularly in the context like the present are different for individual parties and that the developer can
reasonably expect special consideration.

One reason for that is that under the legislation, it is not
for submitter appellants to show that the appeal should
succeed, it is for the co-respondent developer to prove that
it ought to fail.  If the court is uncertain which way to
jump, the appeal succeeds.  A developer, in those
circumstances, in my view, ought to be given a reasonable
opportunity to mount its best case.

It would be unrealistic for the court not to acknowledge and wrong for it not to give significant weight to the difficulties in the developer's camp here.

An event such as the 2011 floods may change things greatly and
has done so here.  On top of that (maybe to an extent in consequence), come the developer's financial difficulties, which have now seen its principals lose control to the receivers.  Mr Quirk is right, that recognition of the receivers and managers, as now having the conduct of the proceeding, does not change the identity of the party.  However, in my view it does change things by introducing cold,

so to speak, new minds which have to come to grips with the

situation and work out what ought to be done about any

redesign of the proposal - indeed, what ought to be done about

continuing to resist the appeal.

Mr Quirk submits that appearances indicate that the

corespondent in whatever emanation is not really interested in

advancing the appeal.  In part he relies on the protracted

timetable which Miss Fitzgibbon, who has been engaged by the

receivers and managers, was proposing.  It looked to a hearing

of the appeal in March 2012 when the original directions

envisaged the same five day hearing in April 2011.

Mr Quirk relies on the statement of grounds for the receiver

and manager's application referring to a Notice of Exercise of

Power of Sale dated the 1st of March 2011 having been served

on the developer company, and perhaps on other circumstances,

to contend that there's no interest by anyone in pursuing the

development physically, that all interest is centred on

selling the property.  Even if that were so, I think it

wouldn't matter.  If Mr Quirk was suggesting that there's some

expectation that an applicant in a development application

will itself construct the development if it's approved or even

intends to do so, I would not accept that at all.  The court

frequently encounters circumstances where the applicant for a

development approval is someone hopeful of winning an approval

which will induce the real developer to make or complete a

contract of purchase, the parameters of which are already

known.

Mr Quirk correctly reminds the court that currently the site

is already in a state which permits it to be sold with a

valuable development approval for an eight-storey

multi-building development.

There's no compelling reason, in his submission, why the court

ought to indulge the corespondent by delaying the hearing of

the appeal so that it can seek to retain the approval that the

council has given for an even larger development.  Those

considerations, in my view, have no relevant part to play in

what the Court has to decide today.  There is no good reason

for shifting out those who presently have a chance of

preserving a further or more valuable approval.

In the end, Mr Quirk has had considerable success in defeating

the attempt of Miss Fitzgibbon, which has the support of Ms

Mitchell representing the council, to defer a substantive

hearing until next year.  Miss Fitzgibbon's timetable has been

capable of being adjusted in fairly minor ways, in other

words, by one or two weeks only, to allow for the possibility

of a hearing in December and indeed the appeal is allocated by

the order that I've initialled to the December sittings.

That's done on the basis that Miss Fitzgibbon at least is

foreshadowing that the parties might have difficulties in

keeping up with the timetable that's not terribly different

in essentials from the one she proposed.  However, her clients

are at a very preliminary stage.

As Ms Mitchell has said, getting a hearing in December or

getting ready for a hearing in December now involves a certain

amount of haste.  The directions order is unusual in

containing provision for Miss Thompson's firm which is on the

record representing the corespondent to withdraw if, for some

reason, Miss Fitzgobbon's undertaking to file a Notice of

Change of Solicitors for the corespondent isn't achieved by

tomorrow evening.  It would have been presumptuous of

Miss Fitzgibbon to file a Notice of Change of Solicitors in

advance of the court hearing her application.  Needless to

say, Mr Quirk indicated that in the circumstances of her

application it had been judged not appropriate to proceed with

the appellant's application which had been set down for today.

Today became a fight over timetabling.

The court has its own concern that the appeal might be

complicated by the proposing of changes to the development

proposal which, it seems to me, are likely.  There may already

have been some discussion with the council with a view to

determining what it would be prepared to accept as minor

change, minor in the sense that the appeal could proceed on

the basis of such changes.

I'm concerned that at some point if there's contest in this

regard it might become necessary for the court to have a

hearing as to whether changes proposed, assuming there will be

some, are really minor change.  It proved difficult to slot

provision about this into the order.

One of the complicating features is rule 27(1) of the Planning

and Environment Court Rules 2010 which forbids experts

attending a meeting of experts from any reference to or

receiving any instruction from the parties before preparation

of the joint report.

Rule 5 allows the court to waive compliance with that and the

conventional direction which the court makes for meetings of

experts in various fields and subsequent reports is qualified

by a provision to this effect: pursuant to rule 5, compliance with rule 27(1) is waived to permit experts to make reference to the parties with a view to proposing or considering changes to the development proposal that the corespondent contends would constitute minor change within section 350 of the Sustainable Planning Act 2009.

I don't think it's reasonable in the circumstances to require

the corespondent to notify changes by some date in advance of

the experts' meeting.  I take that approach on the basis that

the experts' meetings may produce better proposals for changes

than the experts yet to be engaged by the corespondent might

propose.

I'm grateful to the participants today for their assistance

and make an order in terms of the initialled draft.

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