BGM Projects Pty Ltd & Anor v Caboolture City Council [2007] QPEC 108

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: BGM Projects Pty Ltd & Anor v Caboolture City Council [2007] QPEC 108 PARTIES: BGM PROJECTS PTY LTD (ACN 102165328) and EMZAY PTY LTD (ACN 010659197) Appellants/applicants V CABOOLTURE SHIRE COUNCIL Respondent FILE NO/S: BD 1397/2005 DIVISION: Planning and Environment PROCEEDING: Application in a proceeding ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 7 December 2007 DELIVERED AT: Brisbane HEARING DATE: 27 November 2007 JUDGE: Alan Wilson SC, DCJ ORDER: 1 That the on or before the 21 day of December 2007 the respondent provide disclosure of those documents identified as items nos 6, 7, and 12 in the letter which is Exhibit CMM 4 to the affidavit of Clinton Matthew Mohr filed 25 October 2007 2 That there be liberty to apply in respect of item 15 in that letter on seven days’ notice in writing CATCHWORDS: PRACTICE AND PROCEDURE – DISCLOSURE – DISCLOSURE IN PLANNING AND ENVIRONMENT COURT – DISCLOSURE OF DOCUMENTS – relevance of documents – relevance to issues of need Uniform Civil Procedure Rules r 211 Cases considered: Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 Ugarin Pty Ltd v Logan City Council [2004] QPELR 142 -- 1 of 4 -- 2 COUNSEL: R A Quirk for appellants/applicants D Kevin, solicitor, for respondent SOLICITORS: Clinton Mohr Lawyers for appellants/applicants King & Company Solicitors for respondent [1] The appellants applied to the Council in 2003 for a preliminary approval to subdivide a large parcel of land at Narangba into some five hundred and twenty residential lots. Council refused the application in 2005 and the appellants subsequently appealed to this Court. In the present proceeding, the appellants seek further and better disclosure by way of a supplementary list of documents from Council. The documents fall into various disputed classes. [2] The particular documents which are sought are described in a letter from the appellants’ solicitors to the respondent’s solicitors of 17 July 20071. All parties adopted the numbering system used for documents, and groups and classes of them, in that letter and it is convenient to do so here. Quite a few documents had, before the hearing, been conceded by Council as properly amenable to disclosure – hence the gaps in the numerical references which appear below. [3] The principal issues revealed by Council’s original decision notice, the pleadings, and further and better particulars delivered recently by each party concern alleged conflicts with the relevant planning scheme (including, in particular, the fact this land is designated, under the scheme, for rural purposes); whether there is a need for additional residential subdivisional land in the Shire, or the locale; and, issues relating to extractive resources, and the environment. [4] When the original development application was lodged the operative Council planning documents were its 1988 Planning Scheme, a Strategic Plan which commenced in 1993, and a Development Control Plan introduced in May 1997. Subsequently Council brought in its new IPA2 compliant planning scheme on 12 December 2005. [5] The first class of documents in dispute involves planning studies prepared in relation to, or for the purposes of, the 1988 Planning Scheme. The appellants say these are likely to contain ‘… underlying information and factual assumptions relating to the need for residential land and the identification of the subject land for rural purposes’. Some reliance was placed upon an earlier decision of this Court3 for the submission that documents relevant to the subsequent introduction of a planning scheme might be amenable to disclosure. The particular case was, however, one in which the application of the Coty principle4 was vividly an issue. That is not the case here. It is not apparent or compelling that the planning studies which are now sought could have any continuing relevance after the passage of almost 20 years, and in the light of the subsequent introduction of the scheme itself – and, of course, the more recent introduction of the entirely new IPA scheme, two years ago. 1 Exhibit CMM-4 to an affidavit of the appellants’ solicitor Mr Clinton Mohr filed 25 October 2007 2 Integrated Planning Act 1997 3 Ugarin Pty Ltd v Logan City Council [2004] QPELR 142 4 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 -- 2 of 4 -- 3 [6] Accepting that the issue to which these documents might relate is one involving need in the particular context in which the word is used here it refers to need in the town planning sense. That is to say, the issue is whether or not the proposed development would improve the services and facilities available in the locality now, or in the future. It is difficult to see how documents two decades old can have any relevance to current need or, in the phrase used in the rule (UCPR r 211) how they could be ‘directly relevant’ to a matter in issue in the proceedings. I am not persuaded they are amenable to disclosure or that an Order should be made about them. [7] The second disputed class concerns planning studies prepared for the purposes of the formulation of the Shire’s Strategic Plan in 1993. The documents are said to be likely to contain underlying information and factual assumptions relating to need for residential land in the Shire, and the formulation of provisions relating to strategic intentions for land which is the subject of the appeal. These documents are, again, about one and a half decades old and it is impossible to see how they can have any relevance to current need. The suggestion that they might reveal something relevant to the ‘strategic intentions’ which lay behind the Strategic Plan is undermined by the same want of relevance; the Plan stands on its own feet, and expresses its own terms. [8] Unfortunately Mr Mohr’s exhibited letter then contains a group of documents to which no number has been ascribed. They are identified in part of the 1993 Strategic Land Use Planning Study and, the appellants say, are likely to contain information and factual assumptions behind the identification of the subject land for rural purposes. Some of the documents date back to 1972 and none is more recent than 1987. Their age alone cements the idea that they are unlikely to have any relevance and they are, like those referred to in item 3, unlikely to have anything useful to say now about the terms of the 1993 Strategic Plan [9] The sixth group of documents concerns population studies and the Council’s 1993 social plan which are referred to as source documents for the ‘… factual assumptions’ in the 1993 planning study. Again, they are said to be likely to contain relevant information about the factual assumptions underlying the ‘… assessment of the projected need for residential land in the Shire during the life of the transitional planning scheme’. The documents are, again, mostly old but if they relate to projected need that may overcome a submission based upon irrelevance because of age. An analysis of current need in the light of earlier projections up to and including the present time might, I accept, have some relevance although that must be limited in light of the introduction of the subsequent IPA scheme. An Order will be made requiring disclosure of the documents sought under this head. [10] The same conclusion arises in respect of the documents bundled up under item 7. While some are again quite old because they relate to projections apparently expressed in the 1993 Strategic plan they appear to attract the gloss of relevance, to the requisite degree. [11] The ninth document is called Economic Development Strategy – Volume 2 (1992), apparently prepared by the Caboolture Development Association and identifying species of fauna that could be expected to be found in the Shire. Its relevance is said to arise in the context of the environmental values of the land in question. It is inconceivable, however, in an action on the present scale that evidence of present -- 3 of 4 -- 4 fauna (and flora) values would not be adduced – and, once again, it is difficult to see how a document fifteen years old can offer much in the way of current relevance. [12] The same conclusion is attracted by the documents in the tenth item. These relate to extractive resources but include a report from an officer of the Department of Mines in 1979, and another of a review of extractive materials in 1992. While the issues include matters relating to impacts on the operations of a nearby quarry and the need to protect extractive resources, State Planning Policy 2/07 Protection of Extractive Resources is, I accept, likely to be central in determining issues relating to extractive industries. These antique documents can not be said to have any relevance. [13] Item 12 is a report by consulting engineers about sewerage treatment plants, apparently referred to in the 1993 Planning Study and said to be relevant because it might contain information relating to the sufficiency or otherwise of sewerage infrastructure. I accept that may be a material issue, and the document ought to be disclosed. [14] It was agreed all other documents would be disclosed save those grouped together as item 15 which concerned all other applications for approvals for material changes of use and/or reconfiguration of land for residential and ancillary purposes in the Shire since 1 January 2003. Council, unsurprisingly, complains this is too onerous. During submissions both parties obtained instructions to revert to their respective economic/need experts and, after discussions with or between them, to attempt to narrow the parameters of the documents sought. It was agreed the parties would have liberty to apply in respect of the documents referred to under this item. [15] I will hear further submissions about the final form of the order, and any other matters. -- 4 of 4 --