Woolworths Ltd –v- Townsville City Council and Others (BD495/04); Woolworths Ltd –v- Townsville City Council and Others (BD1007/04)
[2004] QPEC 32
•13 July 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Woolworths Ltd –v- Townsville City Council and Others (BD495/04) |
PARTIES: BD495/04 BD1007/04 | WOOLWORTHS LTD Applicant Against TOWNSVILLE CITY COUNCIL 1st Respondent THE WAREHOUSE GROUP (AUSTRALIA) 2nd Respondent LANDEL PTY LTD AS TRUSTEE OF THE LANCINI FAMILY DISCRETIONARY TRUST 3rd Respondent WOOLWORTHS LTD Applicant Against TOWNSVILLE CITY COUNCIL 1st Respondent MACKRO WAREHOUSE PTY LTD 2nd Respondent DALRYMPLE TOWNSVILLE PTY LTD 3rd Respondent |
| FILE NO: | BD 495/04 & BD 1007/04 |
| PROCEEDING: | Applications to vary orders that the applications be heard consecutively. |
| DELIVERED ON: | 13 July 2004 |
| DELIVERED AT: | Townsville |
| HEARING DATE: | 13 July 2004 |
| JUDGE: | CF Wall QC |
| ORDERS: | Applications dismissed. |
| CATCHWORDS: | BUILDING CONTROL AND TOWN PLANNING – applications that separate but related applications be heard together – some commonality of evidence – however differences in each operation, zoning, evidence, parties and discretionary considerations such that each application should be heard separately. Cases referred to: |
COUNSEL: BD 1007/04 | Mr J. Houston for the Applicants Mr J. Houston for the Applicants |
SOLICITORS: BD 1007/04 | Mallesons Stephen Jaques for the Applicant Mallesons Stephen Jaques for the Applicant |
PLANNING AND ENVIRONMENT COURT
JUDGE C F WALL QC
No BD495 of 2004
| WOOLWORTHS LTD (ACN 000 014 675) | Applicant |
| and | |
| TOWNSVILLE CITY COUNCIL THE WAREHOUSE GROUP (AUSTRALIA) and LANDEL PTY LTD AS TRUSTEE OF THE No BD1007 of 2004 WOOLWORTHS LTD (ACN 000 014 675) and TOWNSVILLE CITY COUNCIL and MAKRO WAREHOUSE PTY LTD (ACN 087 578 578) and DALRYMPLE TOWNSVILLE PTY LTD | First Respondent Second Respondent Third Respondent Applicant First Respondent Second Respondent Third Respondent |
TOWNSVILLE
..DATE 13/07/2004
JUDGMENT AND ORDERS
HIS HONOUR: These are applications for a variation of orders made in each matter on the 25th of May 2004, that each application be heard consecutively with 495 of 2004 going first, followed by 1007 of 2004.
The following appear to be the considerations relevant to a determination of the applications now before me, which are that each matter be heard together:
1.There are conceded by Woolworths, the applicant in each case to be degrees of difference in the operations of each store, to use that term in a neutral sense. One is more up-market than the other, each store is operating, and the evidence of the operations of each will be different.
Woolworths have three witnesses who are the same in each case; they are, Mr Buckley a town planner, Mr Walkley, a market research analyst and Mr Dimasi, a retail analyst.
The planning scheme definitions are the same in each case, but each store is subject to different zoning and different planning scheme zoning provisions.Mr Buckley's evidence will be to that extent different in each case, but I concede there are some matters that he can speak about which will be common to both.
Mr Walkley will give evidence of floor space, products and the proportion of products to floor space in each case, to summarise some of the matters referred to by Mr Houston who appeared for Woolworths.
Mr Demarci will, amongst other things, give evidence about sales volumes in relation to each operation and retail store heirachy.
It is apparent from that summary that evidence in relation to floor space, products, proportion of products to floor space and sales volumes will be different in each application.
2. The reports of each of the three experts proposed to be called by Woolworths will be different in each matter, notwithstanding that there may be some areas of commonality.
3. Each operator, the Warehouse Group and Makro Warehouse are represented by the same solicitors, and each is not opposed to the application that the matters be heard together.
4. No evidence at the moment is proposed to be led in each matter by the Townsville City Council.
5. The Townsville City Council opposes consecutive hearings, and the grounds of that opposition are referred to in paragraphs 16 to 22 of the outline of argument of Mr Quirk who appeared for the Council, the outline being that in relation to 495 of 2004.
It is also submitted by the Council that each matter is not really substantially the same, and that evidence in relation to the exercise of the discretion will be different in each case and reference was made for example to the different approvals, different amenity issues and different aspects of detriment. Those matters were not though raised by each operator as an impediment to a joint hearing.
6. Landel, the lessor of the premises operated by the Warehouse Group, support consecutive hearings, and oppose a joint hearing for the reasons referred to in paragraph 4 of the outline of argument of Mr Mosch. Mr Mosch also relies upon the same discretionary matters relied upon by Mr Quirk.
7. Landel would probably not be calling any evidence, but would rely upon witnesses called by the Warehouse Group. Landel also rely upon the fact that in each matter there would be different evidence as to markets, product lines, floor space and percentage of sales.
8. Woolworths accepts that each operation is a different development on different land, and is a result of separate Council approval, the approval for each given at different times.
9.Woolworths concedes that discretionary considerations may possibly be different in each case, but beyond that it is unable to say more in the absence of particulars from the respondents particularly the Council, in relation to the discretionary considerations that each will be relying upon.
Similar considerations exercised Judge Britton's mind in Westfield Management Limited and Pine Rivers Shire Council and the Warehouse Group, and Westfield Management Limited and Pine Rivers Shire Council and Walker Corporation Limited, in a judgment delivered by his Honour some time in 2003. A copy of the judgment is attached to the outline of argument of Mr Mosch. In those matters, his Honour ordered consecutive trials rather than a joint hearing.
I appreciate that there are some differences between the matters before Judge Britton and the matters before me, but in general terms, similar considerations apply here to those which existed before his Honour, and for basically the same reasons given by his Honour, I have reached the conclusion that each matter should be heard consecutively rather than together.
I think the issues would be able to be better understood and considered with separate hearings, notwithstanding that there are likely to be some matters common to each.
A further consideration which has exercised my mind is the fact that Landel is a respondent in 495 of 2004 and not 1007 of 2004. The estimate of the length of time taken to hear each matter together ranges from three to five days and up to six days should the matters be heard consecutively. Were an order made that each be heard together, Landel would find itself locked into possibly a six day rather than a three day hearing at unnecessary cost to it, and that would carry with it an element of significant unfairness which I do not think it reasonable to visit upon it.
For those reasons, the applications to vary the orders that the matters be heard consecutively are refused.
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