West End Community Association v Brisbane City Council & Ors (No 2)

[2011] QPEC 40

[2011] QPEC 40

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN  QC

P & E Appeal No 3343 of 2010

WEST END COMMUNITY ASSOCIATION	Appellant
and
BRISBANE CITY COUNCIL & OTHERS	Respondents

BRISBANE

..DATE 11/03/2011

ORDER

CATCHWORDS

Submitter appeal against development approval for "a large scale 5 building apartment project in Brisbane's West End" to contain hundreds of apartments, many already sold off the plan - site inundated in January 2011 flood, likely necessitating redesign - developer co-respondent in financial difficulty, facing liquidation - its solicitor asserts that funds may shortly become available - co-respondent should not be held to the existing directions timetable in the circumstances

HIS HONOUR:  This matter was last before me on the 18th February.  The co-respondent developer, if the two had to this point been successful in advancing its “was large scale five building apartment project in Brisbane's West End” (to adopt the description in a Courier Mail article of the 4th March 2011, a copy of which Mr Bratchford tendered), in that Council approval for the project was obtained after attracting an adverse submission from the appellant and ultimately bringing upon itself this submitter appeal.

The court was informed that a considerable number of the hundreds of residential units proposed have been sold off the plan.  The developer's arrangements have been thrown into confusion by the floods of last January which will necessitate some revision of its project, if only to ensure that certain facilities are relocated away from a risk of damage by inundation.

A timetable had been set by court orders envisaging a hearing of the appeal for 5 days in the April sittings, set for call-over next month.  On the last appearance, the court indulged the developer against the submissions of the appellant to the extent of extending by 12 weeks the directions orders - which had the effect of taking the matter out of the April pool.

A review was fixed for today expressly to determine the appropriateness of those extended directions.  Two things change the picture today.  The first is this court being informed, although it's not news to the developer, that it faces a hearing of a winding-up petition in the Supreme Court next Monday.

Computer difficulties in the Council have precluded its complying with a standing direction that it notify its position by now.  The Council will require only days to attend to that difficulty.  The more significant issue concerns what may be financial difficulties the developer is encountering.  That’s certainly what the Courier Mail writer thinks.

Mr Bratchford for the appellant has tendered a copy of a Supreme Court order of 17th February 2011 which permitted the substitution as the petitioning creditor of a firm of lawyers.  Ms Morris tells the Court - you haven't got an affidavit, have you?

MS MORRIS:  Mr Kim says that he's acting.

HIS HONOUR:  Yes, I know, but you haven't got an affidavit about it.

MS MORRIS:  No.

HIS HONOUR:  Ms Morris, representing the developer, informs the court from the bar table that the principal of the developer, Mr Kim, is presumably in Korea and expressing confidence that funds will become available to relieve the developer from its difficulties in the Supreme Court.  She understands, as I understood her, that the funds may also be available to permit her firm to prepare for the appeal, but perhaps that's not so certain.

She tells the court funds aren't available at the moment to cover the taking of steps in accordance with the extended dates set out in the court's directions order which was originally made on the 9th December 2010.  The difference between the appellant and the co-respondent concerns whether the co-respondent should be kept up to a timetable requiring steps to be taken.

One can understand why tactically the appellant would take that approach.  The company is presently at a serious disadvantage in prosecuting a proceeding in which it must prove that the development application (presumably with some changes) should be approved.  The Court finds itself taking the more sympathetic attitude, from the developer's point of view, taken by the Council.  This is a large project which will presumably, if it goes ahead, produce benefits for many notwithstanding the opposition of the appellant and perhaps many local people to it.

I do not think that it would be a wise decision by the court to require matters to proceed on a basis that may cause the loss of the project unnecessarily because a tight timetable couldn't be adhered to.  Even if the company is wound up or placed in receivership, those charged with its management may be willing to carry this proceeding on.  I'm not prepared to go quite as far as Ms Morris asked and propose that the directions continue, in effect, but that the dates set will be extended by a further 4 weeks.

I accept Ms Morris's submission that the appeal ought to be adjourned until the 8th April rather than the 18th March as Mr Bratchford sought.  The order made today in terms of the initialled draft requires the co-respondent to notify the active parties in writing of its intentions with regard to the proceeding by that next mention date on the 8th April.

There's another provision in the draft order requiring that the Council, following that notice from the developer, notify grounds to be proposed by it as ones that might serve to overcome conflict the development proposal exhibits with the planning scheme.

Paragraph 3 of the order which I've initialled reads:  “The already extended dates contained in paragraphs 9, 10, 11, 12, 13 14, 16, 20, 21, 22 and 23, of order of the court made on 9 December 2010, are all extended by a further 4 weeks”.  I don't know whether it will cause you difficulties or not, Ms Morris, but I'm unwilling to abandon case management by the court to the extent that I thought your proposal to vacate all directions would do.

The last matter that deserves note perhaps is Mr Bratchford's criticism of the co-respondent's statement of position filed today to satisfy the court's order.  He submits that it's embarrassingly brief and ought not, as it does, reserve the right to alter, add to or amend or vary.

I note his submissions but I'm not prepared to preclude the co-respondent in the unusual circumstances from enjoying a certain amount of flexibility.  If the appellant wants more detail of the position it can seek particulars.  So, order as per initialled draft.

MS MORRIS:  Thank you, your Honour.  Could I just query paragraph 3 of the order?  When you say it's extended by a further 4 weeks might we add a further 4 weeks to the dates?

HIS HONOUR:  Additional to the 12 weeks allowed.  I thought it was clear.  Additional to the 12 weeks allowed by the order of 18 February 2011.

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