Capricorn Green Pty Ltd v Livingstone Shire Council & Ors [2007] QPEC 14 [2007] QPELR 410

1 [2007] QPEC 014 PLANNING AND ENVIRONMENT COURT JUDGE RACKEMANN P & E Appeal No 3193 of 2006 CAPRICORN GREEN PTY LTD (ACN 107 612 313) Appellant and LIVINGSTONE SHIRE COUNCIL Respondent and THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 First Co-Respondent and THE CHIEF EXECUTIVE UNDER THE VEGETATION MANAGEMENT ACT 1999 Second Co-Respondent and GRAHAM HENRY MILLER and CAROL ANN MILLER Third Co-Respondent and THE PUBLIC TRUSTEE OF QUEENSLAND Fourth Co-Respondent -- 1 of 16 -- P & E Appeal No BD19 of 2007 JET DEVELOPMENT PTY LTD (ACN 107 913 762) Appellant and LIVINGSTONE SHIRE COUNCIL Respondent and CHIEF EXECUTIVE, DEPT OF MAIN ROADS First Co-Respondent by Election and CAPRICORN GREEN PTY LTD (ACN 107 612 313) Second Co-respondent by Election BRISBANE ..DATE 09/03/2007 JUDGMENT 2 JUDGMENT -- 2 of 16 -- HIS HONOUR: By an application filed on 1 March 2007 in appeal number 3193 or 2006 Mr and Mrs Miller, the third co- respondents, sought orders vacating various directions and adjourning the appeal to a date to be fixed. Although not parties to appeal 19 of 2007, they also sought to have corresponding orders made in that appeal. Appeal number 3193 of 2006 by Capricorn Green Pty Ltd is against a deemed refusal of a development application to facilitate the development of a shopping centre on land at 3447 Emu Park Road, Emu Park. The Millers had, on 8 August 2006, via consultants THG Resource Strategists, lodged a submission objecting to the Capricorn Green application. The submission made reference to the impending application by Buildev Development Queensland Pty Ltd for a shopping centre complex over land, which they owned, along Emu Park Road. It was submitted that that proposal was far superior to the Capricorn Green proposal. The Millers subsequently elected to become co-respondents to the Capricorn Green appeal. It may be noted that there are two applications by Buildev, but the one of particular relevance for present purposes is that for a retail development. By appeal 19 of 2007 Jet Development appealed against Council's deemed refusal of yet another development application to permit a shopping centre, this time on land owned by the Public Trustee of Queensland. 3 JUDGMENT -- 3 of 16 -- Each of the three development applications was made in mid 2006, the Capricorn Green application having been made on the 24th of May 2006 followed by the Jet development application on the 18th of July 2006 and the Buildev application on the 25th of August 2006. Each development application proposes a supermarket of comparable size. The Capricorn Green proposal includes a supermarket with a gross floor area of 3180 square metres while the Jet development proposal includes a supermarket of 2517 square metres and the Buildev proposal a supermarket with a gross floor area of 3200 square metres. The three proposals are within a few kilometres of each other. Mr Shimmin, a property economist and market research consultant, engaged on behalf of the Millers, deposed that, in his opinion, the trade area/catchment to be served by each of the proposed supermarkets is likely to be identical or very similar, that there is likely to be a need only for one full-line supermarket for the catchment area and that the issues of need and impact will be similar and/or overlapping for each of the proposals. He says the proposals are, in effect, competing for the opportunity to be the supermarket- based shopping centre for the Emu Park area if such a development is to be permitted. His view that there is need for only one was not challenged and is reflected also in the affidavits of Mr Ryter, a town planning consultant engaged by the Council, and Mr Nicholls, the solicitor for Jet Development and the Public Trustee. The fate of each application has obvious implications for the others. 4 JUDGMENT -- 4 of 16 -- It might be noted that Mr Nicholls also deposed that each of the applications is in respect of land which is outside the area zoned business and that the land so zoned in the town of Emu Park is fully allocated otherwise and not available for a supermarket-based shopping centre of a size necessary to service the resident population. Proposals for retail facilities of this nature and scale are obviously significant in the Emu Park context. Mr Ryter deposed that "I have been informed by Brian Haratsis of Macroplan Australia and verily believe that the proposed developments will require a population level within the primary catchment of between 8000 to 10000 people. It is anticipated that the necessary population will not be achieved until post 2016. Having regard to this information I am of the opinion that any decision that the Court makes in relation to the current appeals and the potential future appeal is likely to have long term planning implications which will inevitably and significantly impact on the respondent's planning for the Emu Park community for the next 10 to 15 years." The reference to the potential future appeal is a reference to a potential future appeal in relation to the as-yet undecided Buildev development application. In November 2006 the Council sought to delay deciding the Capricorn Green and Jet Development applications pending receipt of a report being prepared by Macroplan Australia 5 JUDGMENT -- 5 of 16 -- which is variously described as a "retail needs analysis report being undertaken as part of the priority infrastructure plan/priority infrastructure area project" and a "retail and industrial land use strategy". That report is expected to be provided to the Council by the end of this month. In response to the Council's attempts to delay making a decision, Capricorn Green and Jet Development instituted their deemed refusal appeals on the 3rd of November 2006 and the 3rd of January 2007 respectively, and orders were made that those appeals be heard together and that evidence in one be evidence in the other and that they be heard in the May 2007 sittings of the Court. The Council subsequently gave notice that it will contend that each of those appeals ought be dismissed and the development applications refused on their merits. The Buildev application has not progressed as swiftly. Buildev changed its proposal and provided a response to an information request on the 23rd of December 2006. The application was first placed on public notification on 12 January 2007, however following allegations of some defect in that notification, public notification was re-commenced on the 19th of February 2007. The period for making submissions does not expire until 2 April 2007. Barring any extensions, the decision-making period would, I was informed, expire on 1 May 2007. It seems likely that any decision on that application would be appealed. Buildev is indeed prepared to undertake to the Court that it will, within seven days, appeal any refusal or deemed refusal. Given the implications which any approval of 6 JUDGMENT -- 6 of 16 -- the Buildev application would have for the Jet Development and Capricorn Green proposals, it would seem likely that interests associated with each of those applications would make submissions and appeal against any approval. A submission objecting to the proposed Buildev retail precinct has already been lodged by consultants on behalf of the Public Trustee to Queensland. That submission states, amongst other things, that the approval of the Jet Development application would satisfy the planning need for a supermarket-based shopping centre in Emu Park. The purpose of the application by the Millers is to delay the hearing of the Jet Development and Capricorn Green appeals for sufficient time to enable the Buildev application to be determined and for any appeal to be set down to be heard together with the Capricorn Green and Jet Development appeals. The application to adjourn the Jet Development and Capricorn Green appeals is strongly supported by the Council and is consented to by Capricorn Green, whose solicitor said that his client acknowledged the efficiencies to be achieved by potentially hearing all matters together and preferred the existing two appeals to be adjourned but "didn't want to run the matter hard" save that he would oppose the adjournment of one only of the existing appeals in isolation. The first and second co-respondents in appeal 3193 of 2006 and the first co-respondent in appeal 19 of 2007 adopted neutral attitudes. The application was opposed by Jet Development and the Public Trustee on the basis, amongst other things, that an adjournment would be an unjustified interference with their 7 JUDGMENT -- 7 of 16 -- matters proceeding to trial in a timely way in the usual fashion. There are some obvious attractions in the submission that appeals in respect of the three applications should, if practical, be heard and determined contemporaneously. Although each application must be assessed on its merits, and while the Court generally looks to the acceptability of a given proposal on a given site, rather than whether a better site might exist, it has also been recognised that there are occasional cases in which there is a genuine contest between competing proposals which, realistically, requires a degree of comparison in determining which ought be approved. See Ugarin Pty Ltd v Logan City Council [2004] QPELR 392 at 400. In support of his client's application, senior counsel for the Millers drew attention to the affidavit filed by the solicitor for Jet Development in support of its application for its appeal and the earlier Capricorn Green appeal to be heard together. In that affidavit the solicitor for Jet Development said, amongst other things, that: "18(3) Evidence as to the suitability of the three sites and the form and scale of the shopping centres proposed for each site will be integral to the consideration of each application, there being no land which is suitably zoned or designated and available for the purposes of a supermarket-based shopping centre in Emu Park; (4) It will be Jet Development's case that there will only be a need for one of the development applications to be approved; (5) Although the Buildev application is not before the Court for determination the outcome of the Capricorn Green and Jet Development appeals has an obvious relationship with the consideration and determination of the Buildev application; and (9) Evidence of the expert town planners and economists with respect to the Capricorn Green or Jet Development 8 JUDGMENT -- 8 of 16 -- applications will inevitably involve evidence about each of those applications and of the Buildev application." While counsel for Jet Development suggested that his instructing solicitor may have overstated the matter by claiming that evidence as to the suitability of the three sites and the form and scale of the shopping centres proposed for each site will be "integral" to the consideration of each application, it is evident that each application will have relevance to the others. It was submitted on behalf of the Millers that there is, in the circumstances, good reasons to accommodate a short deferral of the hearing of the existing appeals beyond May 2007 because: (a) the Council has not yet decided the Buildev application; (b) the Council is awaiting the outcome of the retail needs study; (c) the Court will be presented with some difficulty in determining the present appeals to which the outcome of the Buildev application is clearly relevant, when it does not also have before it the Buildev application for determination; and (d) to hear the existing appeals separately and ahead of any appeal arising out of the determination of the Buildev application is likely to result in inefficient use of Court time. Further it was submitted that: 9 JUDGMENT -- 9 of 16 -- (a) the issues in the two existing and one prospective appeal are likely to be similar and substantially overlapping; (b) each will require a consideration of the same planning instruments; (c) those who are parties to multiple appeals are likely to have the same representation in each appeal; (d) the parties are likely to use the same expert witnesses with respect to each of the appeals to which they are a party; (e) the expert evidence in each of the appeals is likely to be of relevance to the other; (f) there is likely to be significant efficiencies if the preliminary steps for any appeal arising out of the determination of the Buildev application are brought in line with preparatory steps for the current appeals; (g) disclosure in an appeal arising out of the determination of the Buildev application is likely to be substantially the same as disclosure in the current appeals; and (h) there are significant efficiencies from the point of view of the Court by reason of the fact that a single inspection will be sufficient, the total time required for hearing will be reduced and only one judgment will be required. I accept that those matters weigh in favour of the application for adjournment of the existing appeals. 10 JUDGMENT -- 10 of 16 -- In opposing any adjournment of the current appeals counsel for Jet Development and the Public Trustee observed that evidence about the Buildev application could, in any event, be called in the existing appeals if they were to be heard in May. While that is true the Court would not be in the same position as if the Buildev application were also before it. Further, the Buildev application may, at that time, be something of a moving feast, in terms of its progress from Council decision through the appeal period and the institution and progress of any appeal. It might be, for example, that the Court would then be considering the Jet Development and Capricorn Green proposals at a time when there was already an approval of the Buildev application, but one subject to an outstanding appeal, not then before it for determination. Counsel for Jet Development and the Public Trustee emphasised the effect that such an order would have on his client's legitimate expectations of a timely hearing of the existing appeals in the usual way. It was pointed out that Jet Development had promptly progressed its development application and had exercised its right to appeal against a deemed refusal of its application, rather than suffer a delay in the Council decision, pending receipt of the needs analysis. The effect of adjourning the existing appeals at this stage would be to slow the progress of the Jet Development appeal, so that Buildev could potentially catch up and the needs analysis could be completed. This could be seen as robbing Jet Development of the advantage of its expeditious conduct and the exercise of its rights to appeal against a 11 JUDGMENT -- 11 of 16 -- deemed refusal. This, it was contended, would be an unwarranted result, particularly where there was, as yet, not even an appeal on foot with respect to the Buildev application and in circumstances where the Millers acquiesced in the earlier orders to set the existing appeals down for determination in May. It was pointed out that there had been a change in solicitors for the Millers, who were now being represented by the solicitors for Buildev, and it was suggested that the application was motivated by desire for Buildev to insinuate itself into the present appeals. In that regard a separate application was made instanter for Buildev to be made a party to each of the existing appeals even though it had not been a submitter with respect to the development applications. Notice of the intention to bring the subject application was given on the 19th of February 2007, the day public notification of the Buildev application recommenced. The evidence did not establish that Jet Development or the Public Trustee will suffer any significant costs thrown away or prejudice in the preparation or conduct of its case, as a result of an adjournment at this stage. I do consider, however, that there is some force in the submissions put on their behalf. The Court would usually be reluctant to delay the hearing of an existing appeal which would otherwise be ready to proceed simply because of the prospect of a future appeal with respect to a competing proposal. 12 JUDGMENT -- 12 of 16 -- The circumstances of this case are however, somewhat unusual and, for the reasons previously outlined, provide an appropriate basis for some adjournment, at this point, with a view to potentially hearing appeals in respect of all development applications contemporaneously. It should be remembered that, in deciding an appeal with respect to a development application, this Court is not simply dealing with a cause of action or the rights and liabilities of the parties before it, as is the case in ordinary civil litigation. Rather it is dealing with matters of broader public and community interest. Given the importance of these competing applications in the context of Emu Park and its future planning, there is merit in Mr Ure's submission to the effect that an approach should be taken which promotes the achievement of the most appropriate planning outcome for the community. In that regard the Court is likely to be assisted by a contemporaneous and full examination of the planning merits of each of the three competing proposals, assuming that the Buildev application results in an appeal. I note the opinion of Mr Ryter that "it is important that none of the three proposals are assessed in isolation from the others if the best planning outcome is to be achieved for Emu Park and the Livingstone Shire". There are however, limits to the extent to which the existing appeals ought to be delayed. So much was recognised by counsel for the Millers. Mr Ure indicated that the Council, for its part, was interested in determining the Buildev 13 JUDGMENT -- 13 of 16 -- application expeditiously. The intention of Buildev is to take all practical steps to expedite the progress of its application to the appeal stage. In that regard it is prepared to waive its right to make representations, under section 3.5.17 of the IPA, in respect of any conditions of approval, and it is also prepared to exercise appeal rights against a refusal or deemed refusal within seven days. It is also prepared to forthwith ascertain the names and addresses of all submitters and write to them concerning their intentions to appeal or to elect to become a co-respondent, as the case may be. There is good reason to anticipate expedition in the future process of the Buildev application. In the circumstances I am prepared to make orders which vacate the existing trial dates and directions with respect to further interlocutory steps and to adjourn the existing appeals for review to a specified date in early May. In that two-month period the Council's needs analysis ought be to hand, a decision made with respect to the application and, at least potentially, an appeal may be on foot. Consideration can then be given to the appropriate orders. Depending on the circumstances which apply at the time, including the progress which has been made in the Buildev application, such orders might then include orders setting the Buildev appeal down for hearing together with the existing appeals. As I have already noted, an application was made instanter to join Buildev as a party to each of the existing appeals. Sufficient notice, in accordance with the rules, was not given with respect to that application. The application was opposed 14 JUDGMENT -- 14 of 16 -- by Jet Development and the Public Trustee. The solicitor for Capricorn Green was not in a position to respond, since there had been insufficient time for him to consider the matter, obtain proper instructions and prepare for any argument. In the circumstances I am not prepared to entertain that application at this time. It was said that such an order would have utility at this stage because it would allow orders to be made requiring Buildev to undertake steps to expedite the progress of its application, in accordance with its express intention. I do not think that is necessary. The steps which Buildev are prepared to take can be made the subject of undertakings to the Court and, in any event, it is in Buildev's interests to ensure that it does everything possible to expedite the progress of its application and any subsequent appeal. Failure to do so may result in orders being made which, again, set the Capricorn Green and Jet Development appeals down to be heard together, in advance of any appeal with respect to the Buildev application. It was pointed out that neither the Millers nor Buildev are parties to Jet Developments appeal. Mr Litster conceded that does not prevent the Court from altering the directions previously made, on its own motion, upon a review of the Jet Development appeal, which was set down for review today. In any event counsel for the Council confirmed that his client also sought the orders adjourning the two appeals, so that they could potentially be heard together with the anticipated appeal concerning the Buildev application. 15 JUDGMENT -- 15 of 16 -- I will hear further submissions about the minutes of order. ----- 16 JUDGMENT -- 16 of 16 --