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Coolum Chase Pty Ltd v Sunshine Coast Regional Council QPEC 55
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Coolum Chase Pty Ltd v Sunshine Coast Regional Council  QPEC 55
COOLUM CHASE PTY LTD
ACN 053 998 048
SUNSHINE COAST REGIONAL COUNCIL
1563 of 2018
Planning and Environment
Application in Pending Proceeding
Planning and Environment Court, Brisbane
23 October 2019, ex tempore
23 October 2019
The application is allowed.
PLANNING AND ENVIRONMENT – PROCEDURE – appeal against refused development application for reconfiguration of a lot into nine lots – application to vacate order setting the hearing down for a sittings – where parties have an earlier but pending appeal about a request to extend the relevant period for a preliminary approval over the same land – where the preliminary approval, the fate of which is dependent on the earlier proceeding, is relevant to the issues for determination in the subject appeal – whether the subject appeal ought await determination of the earlier proceeding – where the respondent had acquiesced in the appellant not progressing the earlier proceeding – where undesirable for issues in the subject proceeding to be determined when the fate of the preliminary approval us unknown – where decision will affect matters of the public interest
E Morzone with D Whitehouse for the appellant
C Hughes QC with J Lyons for the respondent
Kelly Legal for the appellant
Sunshine Coast Council Legal Services for the respondent
- This is an application made by the respondent in appeal 1563 of 2018 to vacate the orders which set that appeal down for hearing in the November sittings of this court. The application is made instanter at the pre-callover review of that matter. The application was made on the basis that the hearing and determination of that matter should await the hearing and determination of other litigation between the parties, and, in particular, appeal 501 of 2016, which relates to the same land.
- The land, the subject of the two proceedings, has been the subject of previous approvals. In particular, it is the subject of a preliminary approval for reconfiguring a lot from 1 lot into 23 lots. That approval would ordinarily have lapsed by now. It was, however, the subject of a request to extend the relevant period. That request was refused by the Council in January of 2016. That decision was appealed by notice of appeal filed on the 8th of February 2016. On 21 July 2017, Everson DCJ made orders declaring that the development approval, the subject of the notice of appeal, has not lapsed and will not lapse until the determination of the appeal, and, in the event that it is necessary, that the relevant period for the development approval be extended up to and including the final determination of the appeal. It is common ground that the preliminary approval remains in force, but that it will lapse until the appellant is successful in appeal 501 of 2016. The fate of the preliminary approval, therefore, depends upon the outcome of that proceeding.
- Appeal 1563 of 2018 is an appeal against the Council’s decision, contained in the decision notice dated 5 April 2018, to refuse another development application by the appellant in relation to the same land. That application sought a development permit to reconfigure the land from 1 lot into 9 lots. That appeal was instituted on the 30th of April 2018.
- Although appeal number 501 of 2016 has been on foot for a long time, it is not at an advanced stage of preparation. The appellant has, instead, progressed appeal 1563 of 2018 to a point where it is otherwise ready to proceed to a hearing next month. The Council has, until very recently, acquiesced in that course.
- On 9 October 2019, the solicitors for the appellant sent to the Council’s solicitor a draft list of issues for determination in appeal 1563 of 2018. I was informed that the draft list was sent in accordance with an agreement reached during a without prejudice meeting between the parties. I was also informed that the draft list included the issues which the appellant would wish to pursue at the hearing of appeal 1563 of 2018. Those issues relied upon the preliminary approval, the subject of appeal 501 of 2016, in a number of respects.
- The land, the subject of the appeal, is contained within the rural zone under the Council’s planning scheme, and also was contained within the regional landscape and rural production area under the applicable regional plan. The Council’s consolidated list of reasons for refusal, provided on the 28th of June 2018, relied upon conflict between the proposal and the provisions relating to those designations. The draft list of issues provided by the appellant included whether the development envisaged by the development application would result in an unacceptable non-compliance with the regional plan having regard to, amongst other things, the preliminary approval. Similarly, it contained an issue as to whether the proposed development would result in unacceptable non-compliance with the strategic outcomes or the strategic framework, having regard to the preliminary approval, and whether the proposed development would result in unacceptable non-compliance with the purpose and overall outcomes of the rural zone, having regard to, amongst other things, the preliminary approval. The relevant matters upon which the appellant wishes to rely include the preliminary approval and community expectations for the subject site and the completion of stage 6B of the Coolum Chase development. Stage 6B is, I was informed, the land, the subject of the preliminary approval, and the development application, the subject of appeal 1563 of 2018.
- It is evident that the preliminary approval, the fate of which is presently unknown, and which will turn upon the outcome of appeal 501 of 2016, is integral to the consideration of the issues at play in appeal 1563 of 2018. Those issues are not simply in relation to whether the approval is currently in force, but, as has been observed, as to community expectations for the completion of the development. Accordingly, the fate of the approval is of relevance. It would therefore seem at least desirable for the decision of appeal 1563 of 2018 to be made at a time when the fate of the approval, the subject of appeal 501 of 2016, is known.
- The appellant points out that the relevance of the preliminary approval, the subject of appeal 501 of 2016, has been known for some time. Indeed, an affidavit of Mr Smerdon filed in appeal 501 of 2016 on the 24th of May 2017 contained a paragraph, which deposed that the development application, the subject of appeal 1563 of 2018, was made in reliance upon the preliminary approval. The notice of appeal, which was filed on the 30th of April 2018, made reference to the preliminary approval. It was also pointed out that while it might be to the appellant’s advantage to have appeal 1563 of 2018 determined prior to appeal 501 of 2016, so that the more recent appeal is determined at a stage when the preliminary approval is still on foot, by virtue of the pending appeal. That advantage is one which arises because of the way the matters have been progressed and that the Council has been content for the matter to proceed in that way, and that it should be bound by its conduct. It was submitted that any prejudice to the Council in the case is a consequence of choices made by it about the management of the appeal and that its current application comes too late to warrant appeal 1563 of 2018 now being held up to await the progression and determination of appeal 501 of 2016.
- There is a deal of merit in what the appellant submits about the Council’s conduct in relation to these matters. If it was to acquiesce in the non-prosecution of appeal 501 of 2016, pending the determination of 1563 of 2018, then it should have considered the consequences of that at the time, and made a determination about whether that was an appropriate course. It is regrettable, to say the least, that having acquiesced, as it has, in the course which has been adopted, the Council now wishes to change its tune at the last minute in a way which would lead to a significant delay to the hearing of the proceeding, namely appeal 1563 of 2018, which is otherwise ready for trial. It is not a course which immediately commends itself. The reality, however, is that it would, for the reasons that I have already given, be undesirable for the issues in appeal 1563 of 2018 to be determined if the fate of the preliminary approval is integral to the issues raised in this litigation, is unknown because of pendency of appeal 501 of 2016. Whilst in ordinary civil proceedings, one could more readily say that the prejudice to the Council’s case should be borne by it, as a consequence of its own conduct, one must, in litigation such as this, recognise that the ultimate decision is one which affects matters of public interest as well. On balance, and not without some hesitation, I accede to the application to vacate the orders setting down appeal 1563 of 2018 for trial.
- Published Case Name:
Coolum Chase Pty Ltd v Sunshine Coast Regional Council
- Shortened Case Name:
Coolum Chase Pty Ltd v Sunshine Coast Regional Council
 QPEC 55
23 Oct 2019