West End Community Association v Brisbane City Council & Ors (No 1)

[2011] QPEC 36

[2011] QPEC 36

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3343 of 2010

WEST END COMMUNITY ASSOCIATION

Appellant

and

BRISBANE CITY COUNCIL

Respondent

and

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

and

MIRAE QUEENSLAND PTY LTD

Co-Respondent

Co-Respondent

BRISBANE

..DATE 18/02/2011

..DAY 1

CATCHWORDS

Submitter appeal - compliance directions to secure a hearing in April 2011 rendered impossible by January 2011 flooding - dates extended by 12 weeks rather than vacated as sought by co-respondent developer

HIS HONOUR:  The court has made the order which is spelt out in terms of an initialled draft.  This is an adverse submitter appeal against a large residential development at West End.  It was expected to be heard in April, but the floods of last month have led to delays in parties being able to comply with Judge Rackemann's directions, starting with the inability to provide photocopies of disclosed documents.

The co-respondent developer in the circumstances is seeking additional time to consider its situation.  The approved development contains nearly 500 residential apartments, of which 100 or so, the court hears, have already been sold off the plan.

The site was inundated in the floods, and still is.  Although the court accepts from Mr Bratchford, representing the appellant association, that it's a large hole in the ground which has had a lot of water in it since long before the floods, they do change the situation, and may force a change in the development, if only to relocate facilities such as generators away from their possibly intended location in the basement.

Ms Morris for the co-respondent sought vacation of all directions and review of the matter on 11th of March, 2011, by when she hopes her client will have a better idea of what it wants to do.

The association, perhaps unusually for a litigant wishing to stop a development, is anxious to advance the appeal to an early hearing, but accepts that April is unrealistic.  I've got some sympathy for the association in its desire not to be deprived of a schedule which the parties have to keep up to.  Even though ordinarily open-ended delay might suit a submitter opposed to a development in many cases, this is apparently one where the association prefers to get the appeal on quickly and take the risk that the appeal is unsuccessful, and its supporters have to contend with development on the ground.  It is hard to avoid a sneaking suspicion that the association is seeking to gain some advantage from the confusion which the court accepts the floods have brought about for the co-respondent developer.

What has been done today is very much provisional.  It's intended to keep a delayed timetable in place, but on the basis that the parties and the court should not feel particularly constrained by that on the 11th of March, 2011.

I would have preferred an eight week delay rather than a twelve week delay, but given the court calendar, that might have seen the co-respondent developer facing an appeal commencing on the 30th of May, which seems to me, unreasonably early in the circumstances.

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