Donald & Ors v Gold Coast City Council & Anor [2007] QPEC 30

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Donald & Ors v Gold Coast City Council & Anor [2007] QPEC 030 PARTIES: PETER LESLIE DONALD & WENDY JOY DONALD First Appellants And BELLENG PTY LTD Second Appellant V GOLD COAST CITY COUNCIL Respondent And THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 Co-respondent by Election FILE NO/S: Southport D208/2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland, Southport DELIVERED ON: 12 April 2007 DELIVERED AT: Brisbane HEARING DATE: 15 March 2007; written submissions received 21 and 23 March 2007 JUDGE: Alan Wilson SC, DCJ ORDER: CATCHWORDS: PLANNING – PLANNING LAW – CONDITIONS OF APPROVAL – DISPUTE ABOUT CERTAIN CONDITIONS – whether conditions relevant and reasonable Integrated Planning Act 1997, s 3.5.30 Planning and Environment Court Rules 1999 COUNSEL: ANS Skoien for first and second Appellants -- 1 of 6 -- 2 WL Cochrane for Respondent EJ Morzone for Co-Respondent by Election SOLICITORS: Cass Legal Group for first and second Appellants Corrs Chambers Westgarth for Respondent Crown Law for Co-Respondent by Election [1] This proceeding began as an appeal against Council’s refusal of the appellants’ application to construct and operate kennels and a cattery, with a caretaker’s residence, at 6 John Rogers Road, Mudgeeraba. Before the hearing Council indicated it would approve the application with conditions, but the appellants contend some of those conditions are not relevant, or reasonable: Integrated Planning Act 1997, s 3.5.30. A complication is that one of those conditions, which seeks to limit the number of actual kennels within the development, is said by the appellants to involve an impermissible attempt by Council to introduce an issue (and evidence from a town planner about it) which had previously been addressed by expert witnesses and resolved. [2] The notice of appeal was filed on 5 May 2006. Thereafter the appellants and Council (and the Co-respondent) entered into ‘without prejudice’ discussions in respect of the issues raised in the proceedings which resulted in changes to the development application in October 2006 by way, firstly, of a reduction in the total number of dogs to be housed in the kennels from 250 to 127, in 64 kennel enclosures; changes in the design of the dog kennel building to increase noise attenuation; and, the addition of landscaping and fencing around the boundaries of the property. Those changes were reflected in seven detailed plans1. [3] This changed application was considered by town planners, acoustic engineers, landscape architects and traffic engineers in joint meetings conducted in October and November 2006. Thereafter, the experts in the various disciplines produced joint statements indicating the only remaining question was whether or not the proposed use required the construction of a passing lane on the eastbound carriageway of the adjoining Gold Coast-Springbrook Road. [4] Those traffic matters were also resolved by further meetings between experts and the appellants and the Co-respondent agreed about the terms of the conditions which should address them. The Co-respondent, ultimately, took no part in the hearing. [5] Written submissions from Counsel for the appellants assert, without demur, that following the experts’ meetings and joint reports in late 2006 the appeal became a conditions appeal: that is, the parties accepted that instead of being asked to decide whether the development application should be approved or refused, the court would be asked to identify the lawful conditions which should be imposed. There is no direct evidence about these matters but Counsel for the respondent conceded, at least, that at a Council meeting on 12 March 2007 it resolved to approve the application subject to a suite of conditions which had been notified to the appellants only a day or two earlier. 1 Exhibit 2, and Exhibit 3 Item 10 -- 2 of 6 -- 3 [6] The town planners retained in the matter were Mr Parker for the appellants, and Mr Venn for the Council. Under a Directions Order made on 19 September 2006 they, and the other experts, were to meet by 16 October 2006 and prepare a joint written statement setting out the issues in dispute that could be resolved, those that could not be resolved, and a brief summary of their differences. That Order was amended on 23 October 2006 and the experts’ meetings were postponed until, at the latest, 15 November 2006; that Order was also revisited, on 24 November 2006, when the experts were directed to complete these exercises by 8 December 2006. On 15 December 2006, however, it was further ordered that the meetings and reports be completed by 15 January 2007. Yet another order of 6 February 2007 directed meetings by 14 February 2007, but: ‘Without prejudice to the appellants’ rights to object to the admission of further expert evidence that goes beyond the remaining issues in dispute in the existing joint statements of the experts …’. [7] The town planners had in fact met on 30 October 2006 and prepared a report indicating, by reference to the amended proposal and the new plans, there were no points of disagreement between them. Some time later, however, Mr Venn advised Mr Parker that he had been requested to discuss a reduction in kennel numbers from 64 to 32 kennels, each containing up to four dogs at any one time. The experts met again on about 20 January 2007 when, as their joint report of 8 March 2007 shows, Mr Venn raised these matters on the basis that a condition limiting the number of animals was a necessary aspect of Council’s ability to police dog numbers and ensure the operator did not exceed set limits. [8] At the hearing I allowed Mr Venn to give evidence on the basis a ruling about the appellants’ objection would appear in these Reasons. During debate about this matter at the hearing Counsel for the appellants was invited to categorise the objection in terms referable to the prevailing legislation, the rules of this court or, if relevant, that part of the law of contract concerning offer and acceptance and, in addition, matters like estoppel. As articulated in subsequent written submissions, the objection is on the basis that the first town planning joint statement resolved the issues in dispute and Mr Venn could not be allowed to advance a new, inconsistent proposition, or opinion, later. [9] The practice of this court concerning meetings of experts and the production of joint reports by them is governed by the Planning and Environment Court Rules 1999 and Practice Direction 1/2006. I was not referred to any provisions in either, or in the previous Orders made in this matter, which would have the effect of preventing an expert from changing his or her mind, or raising a new issue. [10] Plainly, of course, that is not a desirable event. The tenor of the Practice Direction is towards the resolution and reduction of issues. It is conceivable that, in particular cases, the conduct of parties and experts might attract an assertion that a party is estopped from resiling from an opinion expressed in a joint experts’ report (and, indeed, a direction that a party may not raise new evidence touching the matters addressed by the experts in a joint report is not uncommon (and encouraged in the Practice Direction: cl 9(a)(viii), although it was not adopted in this case). [11] In the context of the rather unusual circumstances here, in which the parties appear to have accepted they had, essentially, resolved the appeal save for the terms of the -- 3 of 6 -- 4 conditions to be imposed some months before a resolution of Council actually crystallised that understanding, it is not unreasonable to describe the position at the time these experts meetings occurred as fluid and, to an extent, unclear. [12] While it is regrettable that Council has chosen to depart from the customary practice, that departure occurred in a situation in which, as the appellants’ written submissions concede, ‘… at the end of the day the Respondent (Council) is entitled to ask for whatever conditions it likes …”. For these reasons I do not think the objection can be sustained. (For finality’s sake, it is also appropriate to record that in those circumstances I would have been prepared to grant leave under cl 9(a)(viii) of PD 1/2006.) [13] It should be said that nothing in this analysis gives rise to, or should be taken as a criticism of Mr Venn who appears (not unreasonably) to have taken the view that once the matter resolved to a debate about conditions the issues were, in a sense, reopened. It was not suggested that raising this matter after the first meeting involved any breach of his obligations vis a vis the Court. [14] That said, Mr Venn’s evidence about the new issue he raised after the first experts’ meeting (which became the primary dispute before me) – namely, the number of actual kennels – was not compelling. The plans in the amended development application showed 64 kennel enclosures, holding varying numbers of dogs (between one and four). Mr Venn’s new variation involved halving the number of actual enclosures which would serve, it was said, to reduce the risk of overstocking, or enhance Council’s ability to ensure that did not occur. [15] The concern which underlay the submission was that, without a reduction in the number of enclosures, the risk of breaches of the development approval (by introducing excessive numbers of dogs) would increase. That does not, with respect, follow: firstly, any difficulty with enforcement of the use of 64 dog kennel enclosures would apply equally to 32; secondly, there is no obvious connection between a reduction of the number of kennel enclosures, and the risk of overstocking; and thirdly, there is no evidence that the appellants intend breaching the condition limiting the number of dogs, and no basis for concluding they will do so. [16] Part of the fear is based, it seems, on a concern that Council officers do not have a lawful right to demand immediate access to such premises to check dog numbers. That concern can be ameliorated by a condition requiring the operator to allow access and inspection by Council officers at appropriate times, on reasonable notice (and the appellants have signified they would not object to a condition of that kind). [17] Other relatively insignificant conditions also remain in dispute. Issues in relation to the detail of the cattery and the identification of building materials seem to have evaporated. Otherwise, as was suggested for the appellants, a condition that the location of the cat exercise yards (if any) and the internal layout of the proposed category should be in accordance with the requirements of the Building Code of Australia, and use building materials in accordance with that Code (to include materials specified in s 5 of the first noise experts’ joint statement dated 17 November 2006) would be appropriate. -- 4 of 6 -- 5 [18] Clauses in Condition 1 required the further submission of plans and details for approval by Council’s Chief Executive Officer before the issue of a development permit but, as the various joint experts statements have identified, the plans and drawings considered in the amended proposal are satisfactory, and reflect what Council has actually approved. That part of the condition is, then, superfluous. [19] Condition 4 involved a dispute about the colour to be used on building materials for the kennels. While the Court often has useful views on matters of form, style and colour those things will only rarely fall within its jurisdiction; this condition should be resolved by further discussions between the landscape architects. [20] Condition 18 concerned hours of operation which Council has attempted, in its draft proposed conditions, to reduce below those agreed in s 5 of the first noise experts’ joint statement of 17 November 2006. There is no evidence to suggest that operation ought not occur at the times and periods specified and agreed by the acoustics experts, and the condition should reflect that. [21] Condition 19, concerning methods of construction and operation which meet conditions also detailed in the noise experts’ report of 17 November 2006, includes a term requiring compliance prior to commencement of the approved use. That part of the condition is both impossible, and superfluous. [22] Condition 26 requires a dense landscape strip of 3 metres along the frontage for the entire length of the Gold Coast-Springbrook Road and another nearby road, but that considerably exceeds the criteria agreed in the landscape architects experts’ report of 27 February 2007. This report addresses fencing and landscaping on various parts of the subject land and suggests methods of compliance which are, plainly, entirely relevant and reasonable (subject to the addition of the words (as agreed between the appellants and co-respondent by election) ‘with such landscaping to be performed within the site boundaries’). [23] Condition 28 concerns vegetation management and requires that no protected vegetation should be damaged in the process of constructing or using the proposed development or associated works. The appellant proposes the addition of the words ‘other than as required under Condition 38’. That condition touches operational works and reference to it will, I accept, make it clear that protected vegetation may be removed if that accords with or is necessary under the operational works approval. [24] Amongst the Concurrence agency conditions is one concerning noise (2.0). The appellant proposes the inclusion of additional terms to bring those conditions in line with the matters agreed by the acoustics experts in their joint statement and which would serve to more clearly define the operator’s obligations. I agree that course is both reasonable, and logical. [25] Concurrence agency Condition 5.0 concerning waste should, it is suggested by the appellants, be supplemented by the inclusion of a few words which more clearly relate the terms of compliance with the waste management plan (Condition 5.7) to an environmental management plan prepared by the second appellant; again, I am persuaded that is a reasonable and relevant proposition. -- 5 of 6 -- 6 [26] It was submitted by the appellants, without demur, that a definition in Concurrence agency Condition 8.0 was wrongly included, and should be removed. It was also submitted that a definition of the term ‘inaudible’ should be included, in terms which are consistent with the first noise joint statement of November 2006 and that, again, is also appropriate. [27] Finally, the appellants seek the deletion of expressions like ‘approved by the Chief Executive Officer’ and ‘to the satisfaction of the Chief Executive Officer’ in Conditions 1, 9, 20, 23, 24, 33 and 42 on the basis that those conditions are whole unto themselves, and fully specify the requirements to be imposed upon the development, leaving no basis for the exercise of any further discretion by the Council’s CEO. The submission is, in respect of some of these conditions, compelling (eg, in respect of Condition 1, discussed earlier) but with some exceptions. Firstly, Condition 23 requires the submission of a detailed landscaping plan which incorporates modifications and recommendations contained in the joint report of the landscape architects, and it is not unreasonable that it should be submitted to, and approved by, the CEO (who is required to be satisfied that the plan incorporates sufficient local native plant species). [28] Secondly, Condition 24 requires that landscape materials, plants, vegetation and watering systems shown on the approved landscaping plan should be properly maintained to the satisfaction of the CEO (by inference, in the future) and that is also not unreasonable. [29] Thirdly, Condition 33 requires that works described in the Environmental Management Plan should be conducted in accordance with that Plan, to the CEO’s satisfaction; investing a discretion about the satisfactory or unsatisfactory nature of those works in the CEO is not unreasonable. Lastly, Condition 42, which requires the submission of a report concerning the on-site retention of stormwater for re-use for irrigation and wash down; once again, further consideration by the CEO is neither onerous, irrelevant nor unreasonable. [30] I will adjourn the matter to an agreed date to allow the parties to amend the conditions package in accordance with these findings. -- 6 of 6 --