Ausbuild Projects Pty Ltd v Redland Council and Another (No. 2) [2010] QPEC 153

[2010] QPEC 153 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 1302 of 2009 AUSBUILD PROJECTS PTY LTD Appellant and REDLAND CITY COUNCIL AND ANOTHER Respondents P & E Appeal No 1303 of 2009 PEET THORNLANDS PTY LTD Appellant and REDLAND CITY COUNCIL AND ANOTHER Respondents BRISBANE ..DATE 14/12/2010 ..DAY 1 CATCHWORDS Orders resolving developer appeals contain development conditions referring to confidential information and documents protected by "Fielder Gillespie" orders - such material directed to be kept sealed while confidentiality remains appropriate 1-1 -- 1 of 5 -- HIS HONOUR: Let's deal with the Ausbuild and Peet Thornlands appeals first. Reasons have been published to the parties. MR HOUSTON: Yes, your Honour. I wasn't sure how your Honour wanted to deal with the judgment in respect of the matters but the matter has otherwise been finalised and there are judgments to hand up resolving the - both the appeals by allowing the appeals and granting the application subject to conditions. HIS HONOUR: But the conditions are now ready, are they? MR HOUSTON: The conditions are now ready in a package. It's been circulated. HIS HONOUR: And Mr O'Dwyer hasn't found any more to - anything in the new conditions to contest. MR O'DWYER: That's correct. HIS HONOUR: So you've identified your points and they were run and the Court formed a view. MR HOUSTON: And your Honour will recall there were - in each case there were two infrastructure agreements which form part of the conditions. So the judgment attaches the conditions in each case, and then the two infrastructure agreements are attached to each of the judgments...... MR HOUSTON: Your Honour, there is one matter that's arisen during the break that perhaps - that could be addressed. A concern has been raised on behalf of the council that the infrastructure agreements - each of the infrastructure agreements in each of the appeals contained in schedule 3 - reference to the structure plan map and in fact a copy of the map and some others which were the subject of the Fielder Gillespie order. HIS HONOUR: I suppose it can be placed – it can be identified and placed in an envelope et cetera. I don't see why that can't be part of the order. MR HOUSTON: That was our submission that it could be part of the order. It assists if we could take the orders back and separate out the schedules in each-----. It's a matter of two minutes----- HIS HONOUR: All right. Are you happy about doing it that way, Mr Ure? MR URE: Absolutely, your Honour. HIS HONOUR: It’s the council with the greatest concern in keeping these matters confidential. MR URE: In each judgment there were two infrastructure 1-2 -- 2 of 5 -- agreements----- HIS HONOUR: Yes. MR URE: -----and in each infrastructure agreement there is a schedule 3 with an index and maps. So there are four schedules and three in the two judgments to be placed in sealed envelopes not to be opened except with the order of the Court. HIS HONOUR: Do you have any problems with that, Mr O'Dwyer? MR O'DWYER: Other than that's extraordinarily unusual, your Honour. HIS HONOUR: I know it's extraordinarily unusual. I don't like sealing these things. But presumably it occurs. Has it ever happened that Fielder Gillespie material got out? MR URE: Not from the Court though. MR HOUSTON: -----I've prepared two tables----- HIS HONOUR: All right. MR HOUSTON: -----and I'll hand up two copies of each. One for the Ausbuild appeal, and one for the Peet appeal. MR HOUSTON: Your Honour's probably familiar perhaps with the plans generally, which were the subject of the hearing. HIS HONOUR: Yes. MR HOUSTON: The tables simply summarise the further changes in the right-hand column compared to the order made by his Honour Judge Pack and the original application. Perhaps if I could just invite your Honour to read through each of the tables. HIS HONOUR: You want a determination that these are minor changes or permissible changes? MR HOUSTON: Minor changes. The changes are clearly in our submission are minor changes. The number of the matters that are referred to in fact such as the road dedications which have resulted in the loss of a small amount of area are consequences of----- HIS HONOUR: They're all confidential in the sense that they're - are they effecting what's in the master plan - what's in the Fielder Gillespie material? MR HOUSTON: I'm not sure that any concern arises out of the identification of the changes themselves in terms of Fielder Gillespie orders, and, your Honour, the approval itself and the plans that have been approved, which are annexed to the judgments your Honour's given this morning, will be matters of public record. It's just the documents that came from the structure plan that have been taken out. 1-3 -- 3 of 5 -- HIS HONOUR: Well I can see, looking at Peet, we’re getting a lot more green space; well that's usually acceptable. But there's a bit of a trade off for wildlife in the next section. And the test is “substantially a different development,” is it? MR HOUSTON: That's correct, your Honour. Yes. HIS HONOUR: And, of course, I'm comparing it with the original, not with what Judge Pack authorised. That's right, isn't it? MR HOUSTON: That's correct, your Honour. The original detail is set out in the table as well. HIS HONOUR: Well you're going with what Judge Pack did about the pink residential and the green open space, aren't you? MR HOUSTON: That's correct, your Honour. HIS HONOUR: Okay. Thank you. MR HOUSTON: Yes. And the changes from there, when one compares them to the plans, is insignificant in our submission. That's all. There are two judgments in each appeal, your Honour, and for each judgment there will be schedules 3 that have been extracted. HIS HONOUR: And I've got to say something in the order about that, haven't I. MR HOUSTON: Yes, your Honour, that would be appropriate. There's schedule 3 to annexure A which is one of the infrastructure agreements, and schedule A to annexure B which is the other infrastructure agreement. HIS HONOUR: It is ordered that to preserve the confidentiality of "Fielder Gillespie" documents, schedule 3 to each of attachment A and attachment B in annexure A be placed in sealed envelopes and not be opened except by order of a Judge. Now the time might come before long when – the need for confidentiality is gone. MR HOUSTON: That's expected, your Honour, but at some point in the reasonably near future I understand. MR O'DWYER: If your Honour wished to – avoid the necessity to seek an order you could go on to say that - or upon the public notification of the draft structure plan, for example. To save the parties coming back. HIS HONOUR: I'll just make it known that I would be happy to make that order on the basis of an email communication that have done rounds of all the parties. 1-4 -- 4 of 5 -- Orders as per initialled draft in both appeals. 1-5 -- 5 of 5 --