Coolum Properties Pty Ltd v Maroochydore Shire Council [2006] QPEC 87

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Coolum Properties Pty Ltd v Maroochydore Shire Council [2006] QPEC 087 PARTIES: COOLUM PROPERTIES PTY LTD Applicant/Appellant V MAROOCHYDORE SHIRE COUNCIL Respondent FILE NO/S: No 84 of 2006 No 139 of 2006 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 18 August 2006 DELIVERED AT: Maroochydore HEARING DATE: 28 July 2006 ORDER MADE: JUDGE: Dodds DCJ ORDER: CATCHWORDS: Integrated Planning Act 1997 (Qld) Costs- Section 4.1.23(2)(e)(f) COUNSEL: Mr L.A. Manning for the applicant/appellant Mr G.N. Phillips for the respondent SOLICITORS: P&E Law for the appellant Maroochy Shire Council Legal Services for the respondent [1] The applications considered hereafter are: -- 1 of 7 -- 2 in 84 of 2006 an application filed 10 July 2006 by the appellant for an order vacating hearing dates for an appeal (five days commencing 9 October 2006) and to set the appeal down for hearing for five days commencing 4 December 2006; in 139 of 2006 an application filed 9 June 2006 by the appellant for directions orders with respect to the conduct of an appeal against conditions of the respondent's approval of an application by the appellant to change a development approval. [2] 84 of 2006 is an appeal against the respondent's refusal of a development application for a material change of use (showroom) with a total GFA of 8315 m2 (with one including a sales or hire (timber) yard and garden centre) - preliminary approval for operational work (landscaping) on land at 33 Barns Lane Coolum Beach described as lot 102 on SP 161821. There are a number of co-respondents to this appeal, the Chief Executive under the Transport Infrastructure Act and a number of submitters to the original application. [3] On 19 May 2006 orders for directions were made by this Court. Order 10 set the appeal down for hearing commencing 9 October 2006 for five days. Order 2 identified the disputed issues as those raised in the respondent's decision notice (addressed in the notice of appeal) and any other issues notified by any party by 19 June 2006. Order 3 required the appellant to seek any further particulars it required by 26 June 2006 and order 4 required any such particulars requested be responded to by 14 July 2006. [4] The application by the appellant to vacate the hearing date of 9 October 2006 is apparently due to senior counsel's unexpected unavailability. It is not opposed by the respondent and, I gather, the co-respondents. However, the appellant raises other matters of complaint. There is disagreement about the directions orders the Court should now make and the appellant is asking for a costs order. [5] In 139 of 2006 it is necessary to briefly set out some history. On 12 September 2003 the Planning and Environment Court sitting at Maroochydore dismissed submitter appeals, appeals 59, 60, 61 of 2002 and 9 of 2003, against development -- 2 of 7 -- 3 approval in favour of JT and LJ Barnes (the first corespondent) for a material change of use of premises (showrooms, service station, convenience restaurant, garden centre and shopping complex - supermarket); for an environmentally relevant activity (number 11 petroleum product storing); preliminary approval for building works and for operational works (engineering/extraction, excavation or filling/landscaping) in respect of premises described as part of lot 1 RP855899 and part of lot 4 SP135079; for development approval for a material change of use of premises (funeral parlour and special use - crematorium); for an environmentally relevant activity (number 14 - crematorium); preliminary approval for building works and for operational works (engineering/extraction, excavation or filling/landscaping) in respect of premises described as part of lot 1 RP855899 and part of lot 4 SP135079. The above uses were approved subject to conditions. [6] Lot 102 on SP161821 may be regarded as those parts of lot 1 on RP855899 and lot 4 on SP135079 the subject of this Court's orders of 12th September 2003. [7] 139 of 2006 is an appeal against “conditions of the respondent's decision to change a development approval for a material change of use (shopping complex - supermarket, showrooms, convenience restaurant, service station and garden centre) on land described as lot 102 on SP161821". The notice of appeal refers to the orders of this Court in appeals 59, 60, 61 of 2002 and 9 of 2003 and to an approval by this Court in those appeals containing preliminary approval for a service station and a development permit for a convenience restaurant. It says that what was sought from the respondent the subject of the present appeal was a development permit for a material change of use to establish a service station as part of "the Coolum West retail centre" and a minor change to the existing approval, being an amendment to the approved layout for a convenience restaurant which at the time of its approval on 12 September 2003 was a stand alone building. The minor change sought was to now locate the restaurant within the same building as the service station. [8] The conditions appealed against require the relocation of the main entrance to the land the subject of this Court's approval to achieve alignment "compatible with a future dual-lane roundabout planned by the respondent for the intersection of the development's access driveway with Barns Lane" (a road bounding the -- 3 of 7 -- 4 development) "and a future connection road adjacent to the northern boundary of the Coolum State School". [9] The history of the issues in dispute in this application is as follows. On 19 June 2006 the respondent wrote to the appellant's solicitors identifying additional issues in the appeal: unacceptable traffic impacts; conflict with codes for: landscaping design; commercial and community development and use; traffic impact and access management. [10] On 20 June 2006 the appellant's solicitors wrote to the respondent and co- respondents seeking an extension of the hearing date to 4 December 2006 due to counsel's unavailability. [11] On 21st June 2006 solicitors for the appellant wrote to the respondent asserting that the matters in the correspondence of the 19th of June were "far too general, vague and uncertain to constitute proper issues in the appeal" and seeking "clear and specific details" so as to enable the appellant to comply with order 3 of the directions order of the 19th of May 2006. [12] On the same day the respondent signified its consent to an order vacating the 9th of October hearing date and setting the appeal down for hearing on 4 December 2006 for five days. [13] On 27 June 2006 the appellant's solicitors wrote to the respondent noting no response had been received to its request for clarification of the additional issues and forwarding the appellant's request for particulars with respect to the reasons for refusal in the respondent's decision notice and with respect to the additional issues advised by the respondent in its letter of the 19th of June 2006. [14] On 7 July 2006 the respondent wrote to the appellant's solicitors. The letter advised that additional issues had been identified by the respondent: Conflicts between the proposed development and the planning scheme were such that no planning need existed for the proposed development; -- 4 of 7 -- 5 The proposed development would create a centre of a kind and type not envisaged for the location or the Coolum locality; The proposed Bunnings development described in the application as a "showroom" as the term is defined in the planning scheme was properly characterised as a "shop" as that term is used in the planning scheme and there was no support in the planning scheme for such a use in this location; The proposed development would be in substantial conflict with the planning scheme and there were no sufficient planning grounds to justify its approval. The letter also advised additional time was required to provide the further and better particulars. [15] On 17 July 2006 the appellant's solicitors wrote to the respondent seeking confirmation, they had been provided with notice of all issues and advising opposition to any further issues. In another letter of the same date they sought advice when the further and better particulars sought would be provided. [16] By letter of the 19th of July 2006 the respondent informed that it anticipated the further and better particulars would be able to be provided by Monday the 24th of July. [17] On 27 July the respondent wrote to the appellant's solicitors advising it had not as yet been able to complete the particulars. A draft directions order was enclosed. It provided for the appellant to request any further and better particulars by 4 August 2006 with a response by the respondent to be provided by 11 August 2006. [18] If necessary I will order the appellant make any further request for further and better particulars on or before an appropriate date and further order the respondent provide all further and better particulars properly requested on or before an appropriate date. As to, the necessity and appropriate dates, I will hear further from the parties. -- 5 of 7 -- 6 [19] I will also order the respondent pay the appellant's costs of and incidental to any request for further and better particulars occasioned by the notification of further issues by the respondent in its letter of the 7th of July 2006. That is because the Court had ordered all issues be identified by 19 June 2006 with the appellant to require any further and better particulars of issues in dispute by 26 June 2006. This the appellant did on 27 June 2006. If a further request for particulars is necessary, which I think is likely given the additional issues raised, that the appellant will incur further costs. Section 4.1.23(2)(e)(f) Integrated Planning Act. [20] The appellant submitted that the additional issues notified in the letter of 7 July 2006 relating to whether "showroom" or "shop" is the proper description of an aspect of the proposed development should have been ventilated at the time of the hearing for directions orders on 19 May 2006 because an order was then sought and made that the provisions of the Integrated Planning Act had been complied with as to public notification. [21] The public notification notified of a proposal for "material change of use to establish showrooms (four showrooms with a total GFA of 831 m2, one including a sales or hire (timber) yard and garden centre). [22] No doubt on the 19th of May 2006 whether "shop" or "showroom" was the appropriate designation of an aspect of the proposal could have been ventilated. It would not, however, have had any defining impact except to give notice the question may be in dispute. I do not think it could be sensibly contended that an interested member of the public was likely to be misinformed by whether what was disclosed if the proposal was examined was properly within the definition of "shop" or "showroom" in the planning scheme. Whichever is correct may have some relevance whether the provisions of the planning scheme provides support and what support to the proposal, a matter which may be addressed at the hearing of the appeal. [23] The respondent wishes to have 84 of 2006 and 139 of 2006 heard together. The appellant is opposed to this, wishing to have 139 of 2006 heard commencing 30 October 2006. It is estimated it will take three days. -- 6 of 7 -- 7 [24] Both matters relate to lot 102 on SP161821. The appeal against the imposition of the conditions in 139 of 2006 challenges the conditions as an unreasonable imposition and as inconsistent with the conditions of the approval the subject of appeals 59, 60, 61 of 2002 and 9 of 2003 and therefore unlawful. It asserts that the requirement for a roundabout was not contemplated at the time of those appeals and the parties did not consider it or have an opportunity to provide evidence with respect to it. It asserts that any requirement for a roundabout is not related in any way to the development. It would require an internal redesign of the development approved. [25] When the orders of the Court were made in appeals 59, 60 and 61 of 2002 and 9 of 2003 the application before the Court dealt with development on only part of the land which is now lot 102. The application did not deal with and the Court's orders, did not include any approval of the uses sought thereon which are the subject of appeal 84 of 2006. Those uses involve part of lot 102 in its south-west portion. All that was before the Court in the earlier appeals were concepts for the future on that south-western part of lot 102. Those concepts at that time included sports centre and showrooms. The application the subject of the appeal in 84 of 2006 which was refused is for showroom and is in fact for a Bunnings Hardware, et cetera. [26] As I am informed, the application the subject of 84 of 2006, if approved, will mean an additional area of lot 102 will be developed. It is a large site, 6.828 hectares. Points of access to the entire site as developed are to be limited. From the respondents and, for that matter, the community's point of view, for development of the site to proceed, it is important consideration be given to how access meshes with a coherent, safe and efficient road system. [27] I think on balance the better approach is to set both appeals down to be dealt with together. Both will be set down to commence on 5th December 2006. -- 7 of 7 --