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Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast[2021] QPEC 31

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast[2021] QPEC 31



Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2021] QPEC 31






2361 of 2020


Planning and Environment




Planning and Environment Court, Brisbane


1 April 2021, ex tempore




1 April 2021


Rackemann DCJ


Order as per amended draft 


PLANNING AND ENVIRONMENT – where the appellant seeks to add a new issue to the appeal – where there are proposed amendments to the relevant planning scheme – whether allowing the issue to be raised would prejudice the progress of the matter to trial – whether the proposed amendments will be given significant weight in consideration of the appeal – the ability of the town planners to deal with the issue


K Wylie for the appellant 

R Lister QC with T Stork for the respondent


MinterEllison Gold Coast for the appellant

McInnes Wilson Lawyers for the respondent

  1. [1]
    This is an application to add an additional issue in dispute. The application is brought by the respondent. The application seeks to add an issue which relates to proposed amendments to the relevant planning scheme. Those amendments would, if they were ultimately to come into force, impose a more conservative regime upon the site and its surrounds insofar as height, which is a point of contention in the case.
  1. [2]
    The council has been working on potential amendments for some time, and that was a matter known to the council at the time the issues in this matter were notified. The solicitor for the respondent has deposed that a decision was made not to notify an issue with respect to the proposed amendments because, at the relevant time, the council had not determined to proceed with the process of the amendment. It had decided to go through another process to, in effect, give them further consideration. What has changed, however, is that the council subsequently resolved, at its meeting on the 16th of February 2021, to proceed with a fresh round of public consultation with the proposed amendments in an amended form.  Now that the council is, at least at this stage, proceeding again with amending the scheme, the respondent considers it is appropriate to raise those amendments for consideration. 
  1. [3]
    The appellant does not cavil with the proposition that the amendments would be of some relevance were the issue allowed to be raised. Instead, it claims that allowing the issue to be raised would prejudice the progress of the matter to trial in May and that that consequence should be avoided by refusing the amendment of the issues, having regard to what it says is the failure of the council to establish that the proposed amendments to the scheme would, in any event, be given much weight in the consideration of the appeal.
  1. [4]
    In that regard, it points to the history of the matter in which there have already been previous public notifications which did not result in the amendments being taken forward. It pointed out that the public notification that is currently occurring is likely to produce submissions which will then have to be taken into consideration by the council in determining whether or not to proceed with the amendments after this fourth round of public consultation.
  1. [5]
    Accordingly, it was suggested that the amendments are still at a relatively early stage and that there is sufficient uncertainty surrounding them that they would be given little weight. Further it was pointed out that there was no town planning evidence in support of the application to demonstrate that the subject proposal, although inconsistent with the proposed new provisions, would cut across the planning strategy more broadly as it was pointed out that the provisions relate not just at the subject site but to broader areas of the Gold Coast. Those are no doubt matters upon which the appellant will seek to rely upon the hearing of the matter. Ultimately it will be for the judge who hears them to assess the weight that should be put on the proposed amendments in the event that the issue is added.
  1. [6]
    Insofar as there is a competing interest to that of the interest in having the Court consider all of the relevant issues it is that of the efficient disposition of the case which is currently set down in the May sittings. It was suggested that the trial within that period would be imperilled if the issue was allowed to be raised. That submission was put on the assumption that specific trial dates would be obtained for the first week of the May sittings, to suit the convenience of counsel. That assumption cannot be made and, indeed, at least at this stage, it appears unlikely that that could be accommodated by the Court.
  1. [7]
    The greater more immediate problem that was raised was the position of the town planners and their ability to deal with the issue if it was allowed to be raised. The town planners are currently in the course of their joint meeting and are expected to complete that meeting process and provide a joint report on the 9th of April.  The respondent contended that it would be unfair to permit the issue to be added without allowing the town planners’ joint meeting process to be broken to allow them to confer with the lawyers about the new issue before the joint report meeting and report process reconvenes.  I do not consider that to be necessary.  In the circumstances of this case, the matter can simply be left on the basis that the issue of the weight to be afforded to the proposed amendments is a matter that can be dealt with by the town planners in their individual statements rather than in the joint report process.  That would, on the current timetable, give the town planners something in the order of 10 days after producing their joint report in order to address the additional issue in the context of their individual statements.  If need be, the town planners could be given an extra day or two to produce the individual report.  I can see no reason why that would not be a sufficient time in order to address the consequence of the addition of the issue. 
  1. [8]
    In that event, the trial dates in May would not be jeopardised. That would be the case even if the Court had been in a position to offer trial dates in the first week of May, which, as I have indicated, is, in any event, unlikely. The more likely scenario is that the trial will be set down in one of the later weeks of May, which gives even greater room for timetables to be adjusted in the event that there is any unforeseen difficulty or delay experienced in addressing this issue.
  1. [9]
    Accordingly, whilst I appreciate the submission made to the effect that the particular amendments in this case might ultimately be ones which are said to be not decisive, I consider that they are potentially relevant and it is in the interests of justice to allow the issue to be raised. In that regard I do not accept that the raising of the issue is likely to result in the matter not being able to be ready for hearing sometime in May. Accordingly, I will allow the issues to be amended.

Editorial Notes

  • Published Case Name:

    Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast

  • Shortened Case Name:

    Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast

  • MNC:

    [2021] QPEC 31

  • Court:


  • Judge(s):

    Rackemann DCJ

  • Date:

    01 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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