Compost Works Pty Ltd v Bundaberg Regional Council [2018] QPEC 55 [2019] QPELR 335

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Compost Works Pty Ltd v Bundaberg Regional Council [2018] QPEC 55 PARTIES: COMPOST WORKS PTY LTD (ACN 611 705 798) (Appellant) v BUNDABERG REGIONAL COUNCIL (Respondent) FILE NO/S: 4686 of 2016 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 28 November 2018 DELIVERED AT: Brisbane HEARING DATE: 22 November 2018 JUDGE: Everson DCJ ORDER: The application is dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION TO STRIKE OUT APPEAL – where the appellant does not own the land the subject of the appeal – where the registered owner gave consent but has purported to withdraw it – where the respondent brings an application to strike out or dismiss the appeal on the basis the owner no longer consents – where there has been no disclosure – whether the proceeding is a clear futility LEGISLATION: Sustainable Planning Act 2009 (Qld) ss 260, 261, 263, and 267 CASES: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors [2009] HCA 43 Walker v Noosa Shire Council [1983] 2 Qd R 86 COUNSEL: K W Wylie for the appellant SOLICITORS: Finemore Walters & Story for the appellant Connor O’Meara for the respondent [1] In an application in pending proceeding the respondent seeks an order that the appeal be struck out or dismissed. [2] The appeal is against the decision of the respondent to refuse a development application for a development permit for a material change of use to establish a -- 1 of 4 -- 2 Composting Facility (“the proposed use”) on Lot 2 on SP285136 located at Kay McDuff Drive, Thabeban (“the land”). [3] The respondent sensibly narrowed the scope of the application in the course of the hearing.1 [4] The respondent asserts that the appeal has no utility and is a futility because the appellant does not own the land and the owner no longer agrees to it being used for the proposed use. It is submitted that this will result in a considerable waste of time and resources for both the court and the respondent and accordingly the appeal should be struck out or dismissed.2 [5] The land is owned by the Minister for Economic Development Queensland (“MEDQ”).3 In an Acknowledgment Notice dated 16 March 2016 the respondent stated that the development application was deemed to be properly made on 15 March 2016.4 Accordingly the respondent was satisfied that it contained or was accompanied by the consent of the MEDQ.5 [6] In the course of subsequent negotiations between the appellant and the MEDQ, it is alleged by the appellant that the MEDQ altered its position in terms of its support for the proposed development and under what terms that support would remain. [7] The respondent points to two letters which make it clear that the appellant has no prospect of using the land for the proposed use. Firstly, in a letter from Mr White, Executive Director – Industrial Development, Economic Development Queensland to the appellant’s solicitor dated 20 October 2016 it is stated, inter alia: “Council approval is a precondition of MEDQ entering into the Lease with your client. We will need to review Council’s approval to finalise the Lease terms in any event. In addition, we have advised your client that Council support of the proposed development is essential and should Council not support your client’s proposed development (and development approval is obtained through legal action), MEDQ will not enter into a Lease or any other arrangement with your client for the proposed development.”6 [8] The same position was repeated in a letter to the appellant’s solicitor dated 20 June 2018 from Mr Chemello, General Manager Economic Development Queensland who stated that the MEDQ “is discontinuing dealings with your client and has withdrawn its consent” to the proposed development. The letter further stated, inter alia: “I refer you to our letter of 20 October 2016 in which we advised that council endorsement of your client’s proposed development was an 1 T1-9, lines 5-40. 2 Application filed 25 September 2018 paras 19(c)-(d) and para 20. 3 Affidavit of Mr Ellery, filed 26 September 2018, exhibit “MTE-1”. 4 Affidavit of Mr Harrison, filed 31 October 2018, exhibit “MJH-1”, pp 34-36. 5 Sustainable Planning Act 2009 (Qld) ss 260, 261, 263, and 267. 6 Affidavit of Mr Harrison, filed 31 October 2018, exhibit “MGH-1”, p 46. -- 2 of 4 -- 3 essential pre-requisite to EDQ’s granting a lease, or entering into any other arrangement with your client for access to and use of Lot 2. This position was reiterated at a meeting with your client on 17 January 2018. Any dealings between MEDQ and your client depended on resolution of local government authority opposition to the proposed development, notwithstanding any other approvals that may be obtained from the Planning and Environment Court. No form of tenure has been guaranteed…”7 [9] The appellant submits that the position is more complicated than what is conveyed in the correspondence quoted above. In his affidavit Mr Harrison, a director of the appellant deposes to having had extensive negotiations with representatives of the MEDQ following receipt of the letter dated 20 October 2016 in which he was led to believe that the position of the MEDQ was not as represented in the correspondence quoted above and that the MEDQ were well aware that he was actively pursuing the appeal.8 Copies of expert reports were provided to a representative of the MEDQ by Mr Harrison on 30 January 2018.9 Without prejudice negotiations are currently being undertaken between the appellant and the MEDQ.10 If these negotiations are not fruitful the appellant intends to commence legal proceedings against the MEDQ to compel the owner to grant a lease to enable the proposed use to occur on the land in the event the appeal (which is well advanced) is successful.11 A caveat has been lodged to protect the purported interests of the appellant should this prove necessary.12 Such proceedings are foreshadowed as being founded in estoppel in circumstances where it is alleged that the conduct of the MEDQ constituted an inducement that caused the appellant to expend over $200,000 in progressing the development application and pursuing the appeal to the knowledge of the MEDQ and where the appellant was assured that it would be granted a lease to undertake the proposed development on the land.13 [10] The MEDQ was not represented at the hearing of the application and no witnesses were cross-examined. No disclosure has been undertaken. [11] The respondent relies on the broad proposition that a proceeding which serves no useful purpose has been held by the High Court to constitute an abuse of process.14 Moreover, in Walker v Noosa Shire Council15 the Full Court of the Supreme Court of Queensland acknowledged that the fact that a development application “is a clear 7 Affidavit of Mr White, filed 2 October 2018, exhibit “KSJW-1”. 8 Affidavit of Mr Harrison, filed 31 October 2018, paras 24-29. 9 Ibid para 28. 10 Ibid paras 32-33 and affidavit of Mr Ebert, filed 22 November 2018, paras 2-5. 11 Affidavit of Mr Harrison, filed 31 October 2018, para 34. 12 Affidavit of Ms Ly, filed 22 November 2018, exhibit “TTL4”. 13 Ibid para 35, respondent’s Outline of Argument para 31. 14 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors [2009] HCA 43 at [27]-[28]. 15 [1983] 2 Qd R 86. -- 3 of 4 -- 4 futility, or is tainted with illegality that cannot be cured may be a ground for refusing an application.”16 [12] On the facts before me, however, where there has been no disclosure and the true nature and extent of the negotiations between the appellant and the MEDQ remain unclear, I am not capable of concluding that the foreshadowed legal proceedings by which the appellant asserts it will seek to establish an entitlement to a lease over the land to conduct the proposed use are a clear futility. Therefore despite the tenor of the correspondence quoted above, it cannot be said that the appellant has no prospects of implementing the development approval should it be successful in the appeal. Accordingly it has not been demonstrated to me that the appeal serves no useful purpose or that it is a clear futility. [13] The application is dismissed. 16 Ibid at p 89. -- 4 of 4 --