Comiskey Group (a firm) v Moreton Bay Regional Council & Ors [2012] QPEC 10

1-1 [2012] QPEC 10 PLANNING AND ENVIRONMENT COURT JUDGE R JONES P & E Appeal No 2852 of 2010 COMISKEY GROUP Appellant and MORETON BAY REGIONAL COUNCIL Respondent and DAWN GEORGE CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS Fifth Co-Respondent Sixth Co-Respondent by election BRISBANE ..DATE 28/02/2012 ORDER -- 1 of 8 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This matter has come back before me pursuant to orders made by me on 24 November 2011 and in particular order 6 which states: "The matter be listed for mention on 28 February 2012 with a view to considering: (a) whether it is appropriate for the parties in respect of traffic engineering to reconvene and consider the draft master plan, or (b) whether the appeal should be refused." The more substantive issue before me is whether at this stage the appeal should be refused or whether it is appropriate to allow the respective traffic engineers to reconvene. The second issue is, in the event that I was to permit the traffic engineers to reconvene, whether Mr Holland, an experienced traffic engineer well-known to this Court, should be allowed to participate in the joint experts' reports by way of, and to use Mr Haydon's words, providing some sort of peer review of the input of the other traffic engineers. I note here that the costs of and associated with Mr Holland's involvement would be borne by the appellant. In respect of the first matter Ms George argues quite strongly that the appeal should be refused. That is opposed by the appellant, the Moreton Bay Regional Council, and Chief Executive, Department of Transport and Main Roads. In respect of the involvement of Mr Holland that is opposed by the council and the Chief Executive of the Department of -- 2 of 8 -- 1-3 ORDER 1 10 20 30 40 50 60 Transport and Main Roads. Ms George has no view one way or the other about the involvement of Mr Holland. It is true that this matter has dragged on and there is some merit in what Ms George says about bringing the matter to an end, that is, the experts have really had their chance and it is simply time to bring the matter to finality. In addition to that, Ms George raised a number of other matters. Firstly Ms George expressed the view that the council in truth had never really opposed the development but simply, to paraphrase her words, had let the matter proceed to hearing, in effect to deflect any criticism from it to the Court. Ms George also contended that the council has no real valid opposition to the subject loop road and in fact its current opposition is probably linked with some arrangement to ensure that the head tenant of the proposed development, as I understand it is likely to be Woolworths, does not have to deal with any strong economic competition in the future, if land to the north was developed for retail uses. As I indicated earlier, there is no evidence which supports any of those assertions and as I indicated to Ms George any allegations involving, in effect, some sort of commercial conspiracy between any of the parties involved and any other commercial entity would need to be supported by the clearest and strongest evidence. That evidence does not exist. Counsel for the appellant and the council refuted the allegations. -- 3 of 8 -- 1-4 ORDER 1 10 20 30 40 50 60 I should also note in passing that the part of the land to the north, which the loop road was intended to provide for in the event of future development, is the subject of a notice of intention to resume. That such a notice exists is of no real significance in this case. As we all know, there is a long way and many obstacles to be overcome between the issuing of a notice of intention to resume and the proclamation of that resumption in the Government Gazette, and I note in this regard that a number of objections to the resumption have been lodged. Accordingly that that notice of intention exists is of no relevance in the determination of these matters. Ms George also contended that the loop road is in the public interest. In a sense that might well be so. However, it is worth noting here that it could be said that the respondent council largely represents the public interest at the local level. It is of relevance that they do not oppose or no longer oppose this proposal subject to a suitable traffic solution. Also at the wider level, at least insofar as traffic considerations are concerned, the sixth co-respondent by election, the Chief Executive, Department of Transport and Main Roads also represents the wider public interest. So whilst there might be some merit in Ms George's submissions concerning public interest, it appears to me that there is no evidence of any greater or wider public interest which really justifies the inclusion of the loop road in any further consideration of the proposal. -- 4 of 8 -- 1-5 ORDER 1 10 20 30 40 50 60 On the other hand, to dismiss the appeal would have a significant negative public impact in that it would deprive the relevant community of a shopping centre such as this in circumstances there is a clear need for it and where no viable alternate sites exist. Finally on this point, it is also relevant that some of the property requirements associated with the loop road are simply beyond the jurisdiction of this Court, involving as it does, land held in private ownership. In the council’s resolution which forms part of Exhibit 1 to the affidavit of Sonia Whitehouse there is a recommendation to the following effect: "That, in light of the reasons for judgment handed down on 24 October 2011, Council does not oppose the proposed shopping centre at 646 South Pine Road, Eatons Hill (subject to an appropriate traffic solution being found which addresses not only issues of congestion but also public safety, and which will not be reliant on the private road to the north of the site from South Pine Road to Council's South Pine Sporting Complex being gazetted as public road, or having connections to it from the subject site or other adjacent land); 2. That Council does not agree to the private road connecting South Pine Road to Council's South Pine Sporting Complex being gazetted as public road or any connections to it from the subject site or other adjacent land." -- 5 of 8 -- 1-6 ORDER 1 10 20 30 40 50 60 From my reading of the Cardno Eppell Olsen report which also forms part of Exhibit 4 to the affidavit of Ms Whitehouse, under the heading Connection To Adjoining Land, and also under the heading Conclusion, that the loop road is seen, at least by the author of this report, as being a matter which, if required in the future, would have to be dealt with on its own merits and should not form a substantive part of the determination of the traffic issues associated with this proposal. On balance I consider it would be premature to dismiss the appeal at this stage. As I said there is a clear public need for the proposal, the only limitation being that of a satisfactory traffic solution. That there is such a need and no viable alternate site is a powerful reason not to dismiss the appeal at this stage. It also appears to me that on balance, while the loop road, which seemed to have gained momentum during the evidence of the traffic engineers at the hearing of the substantive appeal, did have some initial attraction, given council's now support for the proposal but strong objection to it allowing any of its private road becoming public road, convinces me that the order envisaged in order 2 of the draft orders handed up by Ms Kefford ought be made. The essential effect of that is to no longer make consideration of the loop road a necessity in any future meetings of the traffic engineers. -- 6 of 8 -- 1-7 ORDER 1 10 20 30 40 50 60 If I could turn then to the second matter, that of the involvement of Mr Holland. In paragraph 18 of the written submissions of Mr Haydon, the substantive reasons for the inclusion of Mr Holland are stated in the following terms: "(a) Read objectively the fourth joint report does not demonstrate that the four traffic engineers currently engaged have found a common solution; (b) the consideration of the loop road is clouding the collective judgment with respect to seeking a solution; (c) a peer review at this point in time brings to the table a fresh approach unhindered by the history of the appeal so far." It also pointed out that the inclusion of Mr Holland should not cause any significant delay and that the costs would be met by the appellant. In my view, having regard to the determination I have made about the loop road it would be premature even in the event that I might have had some sympathy for the inclusion of Mr Holland, to involve him at this stage. It seems, at least on the material that has been provided, that a major stumbling block to a solution was the need to resolve the loop road issue. Now that that has been removed it appears to me that there should now be a real prospect of the traffic engineers being able to reach a solution or, if not a final solution, then significantly reduce the issues between them. Other factors have led me to conclude that it would be inappropriate to include Mr Holland, particularly, or at least -- 7 of 8 -- 1-8 ORDER 1 10 20 30 40 50 60 at this stage although I consider that these reasons would be likely to be present in any further such application. At a practical level the involvement of Mr Holland in the expert meeting poses a difficulty in the sense that it would be appropriate, if not necessary, that any input made by Mr Holland be reported. In the event that this matter was to come back before the Court to have some conflict resolved, Mr Holland's involvement raises issues about how his involvement in those meetings would be dealt with. It could result in the unfortunate and unintended consequence that Mr Holland becomes an additional expert witness in any further hearing. It is also relevant, particularly in the light of the ruling about the loop road, that Mr Holland's involvement is not prohibited in any way. Any of the traffic engineers would be able if they considered it appropriate to approach Mr Holland and, of course, Mr Holland would be available to the appellants to review the joint reports and the input of their own traffic engineer. For all of those reasons I propose to make orders in the terms proposed by Ms Kefford with the inclusion of the handwritten notes in order 2. ... ----- -- 8 of 8 --