Australian National Homes Pty Ltd v Moreton Bay Regional Council [2018] QPEC 14

PLANNING & ENVIRONMENT COURT QUEENSLAND CITATION: Australian National Homes Pty Ltd v Moreton Bay Regional Council [2018] QPEC 14 PARTIES: AUSTRALIAN NATIONAL HOMES PTY LTD (applicant) v MORETON BAY REGIONAL COUNCIL (defendant) FILE NO.: 694/2018 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED EX TEMPORE ON: 8 March 2018 DELIVERED AT: Brisbane HEARING DATE: 2 and 8 March 2018 JUDGE: Morzone QC DCJ ORDER: 1. Application allowed for a joint hearing of appeal 694 of 2018 with appeal 340 of 2018, and it is directed that parties settle appropriate orders (in both appeals) to that end consistent with these reasons. 2. Subject to allowing a mechanism for the joinder of additional parties in appeal 694 of 2018, the court is satisfied that the jurisdictional requirements have been fulfilled. 3. In relation to appeal 340 of 2018, the court is satisfied that the compliance with s 297(1)(b) Planning Act 2016 with respect to public notification relating to the period of signage on the land warrants excusal. -- 1 of 7 -- 2 CATCHWORDS: PLANNING AND EVIRONMENT – APPLICATIONS MODE OF HEARING – Application for appeals for competing supermarkets to be heard together - appropriate considerations: whether appeals should be heard together or in a particular sequence; nature and extent of common issues and overlapping evidence; applicable law; expeditious case management; cost and convenience of the parties; efficiencies in the hearing and determination of the proceedings; whether the determination of one proceedings will justly decide or affect the other proceeding; and whether the mode of hearing and determination would otherwise prejudice the proper and orderly development in the public interest. Legislation Planning Act 2017 (Qld) Planning and Environment Court Act 2016 (Qld), ss 10, 15 Planning and Environment Court Rules 2010 (Qld), ss 4. 19(1)(5)(c). Sustainable Planning Act 2009 (Qld). Cases Capricorn Green Pty Ltd v Livingstone Shire Council [2007] QPELR 410. Jennings Industries Limited v Cairns City Council (1978) 37 LGRA 279. Kern Construction Pty Ltd v Cairns City Council (1978) 38 LGRA 54. Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 62. Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 62. Raintrees Pty Ltd v Cairns City Council (1978) 37 LGRA 435. Ugarin Pty Ltd v Logan City Council [2004] QPELR 391. COUNSEL: D Gore QC and B Jobe QC for the appellant J Ware for the respondent C L Hughes QC and M Batty for the co-respondent SOLICITORS: Connor O’Meara for the applicant Gadens for the respondent McCullough Robertson for the co-respondent -- 2 of 7 -- 3 [1] These appeals involve shopping centre development proposals within about 500 metres of each other in the same local government precinct. The appellant in the latter appeal applies for the matters to be heard together and for the evidence to be evidence in both appeals. The application is opposed. Background [2] In appeal 340 of 2018, the appellant submitter Murphy appeals against the council’s approval of the development application made by the co-respondent developer, BGM Projects Pty Ltd at Sovereign Drive, Narangba. BGM applied for a development permit for a local centre comprising: a full line supermarket of 3946 square metres; specialty shops; service station; and a fast food and drink outlet. [3] In appeal 694 of 2018, Australian National Homes Pty Ltd appeals against the council’s refusal of its application for preliminary approval, including a variation to facilitate a local centre comprising a full line supermarket, convenience stores, personal services, specialty shops and service stations, as well as commercial, residential and community activities. Relevant Considerations [4] In the exercise of its jurisdiction, the Court must facilitate the just and expeditious resolution of issues and avoid undue delay, expense and technicality.1 This aim is facilitated by the rules and overriding obligations of the parties and found within the rules.2 In doing so, the Court, when making appropriate orders or directions about the conduct of proceedings, must ensure that the interests of justice remain paramount.3 [5] The Court routinely makes orders about the conduct of the proceedings or directions about procedural matters in planning appeals. In appropriate cases, the Court may order that two or more proceedings be heard together or in a particular sequence, especially where the decision in one proceeding will decide or affect the other proceeding or proceedings.4 [6] In this regard, I have been referred to the way the Court has approached these matters in past cases.5 In considering whether joint or sequential hearings serve the interests of justice in an appropriate case, the Court is required to weigh up various factors which will vary depending upon the circumstances of each particular case, including: 1. The nature and extent of common issues and overlapping evidence; 1 Planning and Environment Court Act 2016 (Qld), s10. 2 Planning and Environment Court Rules 2010 (Qld), s 4. 3 Planning and Environment Court Act 2016 (Qld), s 15. 4 Planning and Environment Court Rules 2010 (Qld), s 19(1)(5)(c). 5 Kern Construction Pty Ltd v Cairns City Council (1978) 38 LGRA 54 Jennings Industries Limited v Cairns City Council (1978) 37 LGRA 279; Raintrees Pty Ltd v Cairns City Council (1978) 37 LGRA 435; Ugarin Pty Ltd v Logan City Council [2004] QPELR 391; Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 62; Capricorn Green Pty Ltd v Livingstone Shire Council [2007] QPELR 410; Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 62; and Capricorn Green Pty Ltd v Livingstone Shire Council [2007] QPELR 410 -- 3 of 7 -- 4 2. The applicable law, including the relevant planning instruments, provisions and legislative assessment regimes; 3. Expeditious case management, including relative stages of proceedings, disclosure, commonality of experts, and expert procedures; 4. Convenience of the parties, including common representation, any undue delay and expense; 5. Efficiencies in the hearing and determination of the proceedings, including time required for joint or sequential hearings, one or more inspections, the flow of evidence and judgment; 6. Whether the determination of one proceedings will justly decide or affect the other proceeding; and 7. Whether the mode of hearing and determination would otherwise prejudice the proper and orderly development in the public interest. Commonality of Issues and Overlapping Evidence [7] Each proposal subject of these appeals is for a local centre under the Moreton Bay Regional Council Planning Scheme 2015. The respective proposals are in the general residential zone (next generation neighbourhood precinct) and subject to similar scheme requirements and overlays. Notwithstanding the relative stages of each proceeding, it is tolerably clear that each proposal will involve overlapping issues and expert evidence, particularly about economic need and traffic in circumstances where ANH contends there is only room for one local centre in the precinct. The nature and extent of the commonality of issues and overlapping evidence is likely to be elevated as the experts examine the scenarios, which may include, of necessity, the impact for both centres if both were to coexist. [8] While ANH applies for the appeals to be heard together in about June 2018, BGM seeks to progress its proceeding subject of the submitter appeal to achieve a timely hearing in May before the same Judge who could hear the appeals in sequence. [9] It seems to me that the nature and extent of these common issues and overlapping evidence favours a joint hearing. Applicable Law [10] The Court’s consideration of these appeals will involve the same planning instruments and similar provisions more or less subject to the unique features of each development framed by the issues. [11] However, it is likely that the legislative assessment regimes brought to bear on that process will be different. For the Murphy appeal, it is likely, having regard to the transitional -- 4 of 7 -- 5 provisions of the Planning Act 2016 (Qld), that the old Act, the Sustainable Planning Act 2009 (Qld), will apply and the relevant assessment regime will be that of past usual processes, and ultimately, if approved, benefitting the proponent with a currency period of four years and an ability to commence the development within that time. [12] In contrast, the latter ANH appeal is likely to be governed by the new legislation and attendant regimes. This is also in the context that the proposal in that appeal is for preliminary approval with a variation request. And in that process, if an approval is granted, a currency period of six years followed by a successive currency period for a development application for a further six years will apply. The features of the latter will involve code assessment, having regard to the earlier determinations. [13] The applicable law will, of course, make the task of the Court more complex, but that complexity will remain largely unameliorated by the different modes of hearing. [14] The parties will still need to grapple with the different regimes having regard to the evidence relevant to each appeal. [15] True it is that the Murphy appeal will endure some impact not otherwise endured in the ordinary course of that appeal. Indeed, it may even endure potential appellate recourse as parties and the Court alike are challenged by new and different wording in that legislation. However, it is not for this Court to speculate about those matters. [16] Focused upon the task at hand, it seems to me that the applicable law, although different, is not such a factor to favour one mode or the other in respect of the hearing. Expeditious Case Management [17] Although commenced within a month of each other, there is significant disparity in the relative progress of the appeals. [18] Since its commencement on 30 January 2018, the Murphy appeal has been subject of case management and has reached the stage where the issues in dispute are relatively solidified to enable expert meetings and joint reports to be completed by early April 2018. The draft order provided by BGM will see a hearing with appropriate timeframes for intermediate steps in May 2018. [19] The later ANH appeal commenced on the 23 February 2018 and is still at an early stage with the time for election of qualified submitters yet to expire. The grounds of appeal address potential issues, but the real issues for determination are yet to be refined. These are matters of case management cognisant of the proper opportunity for an interested submitter to join in the appeal. [20] It is likely that the cohesion of the relevant parties, issues and nominated experts can be solidified by April 2018. Whilst the ANH draft order will see a hearing in June 2018, there -- 5 of 7 -- 6 was a guarded indication by senior counsel of the prospect of an earlier hearing so as to accommodate the concerns of BGM. [21] The commonality of experts is unclear at this stage, given the disparity in the relative progress of the appeals. Clearly enough, the assessment and consideration of common issues will be complicated if different experts diverge in their opinions from case to case. It seems to me that common experts in both appeals would be ideal for either a joint or sequential hearing. However, if the Court is faced with different experts and the potential need to reconcile divergent opinion, then it seems to me it would be more expeditious to jointly manage expert procedures regardless of the mode of hearing. [22] These factors, in my view, also favour a joint hearing rather than a sequential hearing. Convenience, delay and expense [23] The appellant in the earlier appeal, Murphy, is the sole director of ANH, the appellant in the latter appeal, and the sole director of that appellant’s sole shareholder company. Both parties are obviously related in that way. [24] The parties also have common representation and will necessarily be drawn into the management and hearing of both appeals, in any event, regardless of their mode. While the earlier appeal may incur some delay in procedural steps towards a joint hearing, the impact of that delay would be reduced or, at least, brought into context when compared to the inevitable delay of awaiting the hearing and outcome if the matters are to be heard in sequence. That co-respondent developer would still, ultimately, be delayed by the later hearing and any decision subject of the ANH appeal. [25] It is difficult to come to any final considered view about expense at this stage but the same considerations that I mentioned above would apply, and it seems to me that these factors favour a joint hearing. Hearing efficiencies [26] The flow of the hearings without interruption is always more efficient. The Court could conduct one inspection, and management of the flow of witnesses would be more timely and more readily managed in a joint hearing. These efficiencies will save time in the hearing and also promote a timely and cohesive judgment. [27] Of course, the just resolution of proceedings remains the paramount objective, and that whilst speed and efficiency in the sense of minimum delay and expense are essential to a just resolution, these factors must not detract from a proper opportunity given to the parties to put their case. [28] In my view, the scope for greater efficiencies in the hearing and the determination of the proceedings jointly outweigh, in my view, sequential hearings. -- 6 of 7 -- 7 One determination affects the other [29] Having regard to all that I have said, especially in relation to the commonality of issues, I think this is a rare case where there is a genuine contest between competing proposals which, realistically and practically, requires the Court to compare and contrast the proposals. [30] Although significant, the extent to which that is required to be done is a matter for the parties and the Judge in due course. It is sufficient at this stage for me to conclude that the determination of one proceeding may well justly decide or, at least, significantly affect the other proceeding such that a joint hearing is preferable. Public interest [31] Giving the parties’ common position that both proceeding should be heard and determined by the same Judge, the risk of inconsistent judgments is eliminated. In that way, either mode of hearing and determination would not prejudice the proper and orderly development in the public interest. Conclusion [32] For these reasons, I allow the application for a joint hearing of appeal 694 of 2018 with appeal 340 of 2018, and invite the parties to settle appropriate orders to that end, consistent with these reasons. [33] Subject to allowing for a mechanism for the joinder of additional parties in appeal 694 of 2018, I am satisfied that the jurisdictional requirements have been fulfilled. [34] In relation to appeal 340 of 2018, I am satisfied that the compliance with s 279(1)(b) of the Planning Act 2016 with respect to public notification relating to the period of signage on the land warrants excusal, and I will make orders to that effect in due course. -- 7 of 7 --