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- Unreported Judgment
Thomco (No 2087) Pty Ltd v Noosa Shire Council QPEC 24
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Thomco (No. 2087) Pty Ltd ACN 106 723 488 v Noosa Shire Council  QPEC 024
THOMCO (NO. 2087) PTY LTD ACN 106 723 488
NOOSA SHIRE COUNCIL
1360 of 2017 & 1361 of 2017
Planning and Environment
Planning and Environment Court
4 May 2018, ex tempore
4 May 2018
PLANNING AND ENVIRONMENT – APPLICATION IN PENDING PROCEEDING – STRIKE OUT APPLICATION – whether summary disposition is appropriate – where the respondent submits the dispute is not amenable to summary disposition
Uniform Civil Procedure Rules (Qld) r 658
LPD Holdings (Aust) Pty Ltd v Russells  QSC 045
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
T Sullivan QC, with M Batty, for the appellant
C Hughes QC, with H Stephanos, for the respondent
Connor O'Meara for the appellant
Wakefield Sykes for the respondent
- This is an application in pending proceeding which arises in the context of two proceedings, which seek essentially the same relief. The first of these is an originating application, which seeks an extension of the two year period by which all works associated with a development at 215A to 219 David Low Way, Peregian Beach (“the land”) must be completed. The second proceeding is an appeal against the decision of the respondent to refuse to extend the relevant period for the same development permit. The application in pending proceeding seeks that both proceedings be dismissed in a summary way, pursuant to rule 658 the Uniform Civil Procedure Rules 1999 (Qld).
- The development approval, the subject of these proceedings, is a material change of use for a mixed use commercial and accommodation development which was approved by the court on 12 February 2010. Subsequent to the development permit being granted, the appellant, Thomco (No. 2087) Pty Ltd (“Thomco”) obtained a further development approval for a shopping centre on part of the land.
- The application in pending proceeding is brought by the respondent in circumstances where it is alleged that the development of the shopping centre and ancillary uses, pursuant to the second development approval, has resulted in Thomco electing between inconsistent development rights. In the words of Mr Hughes QC, who appears on behalf of the respondent, there was by Thomco, an “unequivocal decision to take up a development of land which is inconsistent with an earlier approval.”
- It is uncontentious that whether or not this is, in fact, the case involves a question of both fact and law. It is submitted by Mr Sullivan QC, who appears on behalf of Thomco, that as there are no pleadings in respect of either proceeding, what is before the court is an application seeking summary dismissal based on the issues the subject of the dispute between the parties.
- It is submitted by Mr Sullivan that this dispute is not amenable to summary disposition, given the extent of the factual conflict between the parties. Conversely, Mr Hughes submits that the inconsistency of the subsequent approval with the earlier approval can readily be ascertained when the plans of the two developments are compared, and exhibit 1 has been tendered to assist me in this regard.
- Further, Mr Hughes submits that assertions by Mr Scanlon in the affidavit filed on the 27th of April 2018 as to the likelihood of Thomco acting on the earlier development approval in some form can be readily discounted and to demonstrate this, he proposes to cross-examine Mr Scanlon in the course of this application.
- It is important to reflect upon the ambit of a proceeding such as this. In LPD Holdings (Aust) Pty Ltd v Russells, Flanagan J observed:
“By present application Russells seeks summary dismissal of LPD’s proceedings either pursuant to rule 658 or within the inherent jurisdiction of the Court. In such circumstances, as observed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) there is a need for exceptional caution in exercising the power whether it be inherent or under statutory rules. A case must be very clear to justify the summary intervention of the court to prevent LPD submitting its case for determination.”
- Relevant considerations in this regard were usefully collected by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society. These include that, the judicial determination of a question in a proceeding such as this “must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties …” and that:
“where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purpose of the preliminary determination, or as agreed facts to be judicially determined …”.
Conversely, factors which will tell against the making of an order pursuant to an application such as this, include, that the question may “give rise to significant contested factual issues …”, or “result in significant overlap between the evidence adduced at the hearing of the separate question and at trial …”.
- I am not confident that there is sufficient factual certainty on the material before me, which makes the relief sought in this application appropriate. The latter development approval which has led to a supermarket and ancillary shops, with a large at grade carpark being built on a limited and discrete portion of the land, of itself does not present sufficient factual certainty as to enable a ready determination of the respondent’s essential proposition that Thomco has unequivocally decided to take up a development option which is inconsistent with the earlier approval.
- The extent to which there is a real contest of fact in this regard is readily ascertainable by the fact that the respondent intends that Mr Scanlon be cross-examined as to Thomco’s realistic intentions for future development of the land. Accordingly, in exercising the necessary caution, there is an insufficiently clear case to justify the summary intervention which the respondent seeks in this application. I therefore dismiss the application.
- Published Case Name:
Thomco (No 2087) Pty Ltd ACN 106 723 488 v Noosa Shire Council
- Shortened Case Name:
Thomco (No 2087) Pty Ltd v Noosa Shire Council
 QPEC 24
04 May 2018