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Riverside Development Pty Ltd v Brisbane City Council QPEC 56
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Riverside Development Pty Ltd v Brisbane City Council & Ors  QPEC 56
RIVERSIDE DEVELOPMENT PTY LTD (ACN 084 611 049)
BRISBANE CITY COUNCIL
DEXUS FUNDS MANAGEMENT LTD (ACN 060 920 783)
PERPETUAL TRUSTEE COMPANY LTD (ACN 000 001 007)
401 of 2021
Planning and Environment Court
Application in pending proceeding
Planning and Environment Court of Queensland, Brisbane
22 October 2021
8 October 2021
Williamson QC DCJ
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – where applicant seeks orders for further disclosure – whether documents sought are directly relevant to an issue in dispute – whether order for further disclosure should be made.
Planning & Environment Court Rules 2018, r 4
Uniform Civil Procedure Rules 1999, rr 209, 211 and 223
Waratah Coal Pty Ltd v Nicholls & Anor  QSC 68
Mr C Hughes QC for the applicant
Mr B Job QC and Mr Lyons of Counsel for the first respondent
Mr D Gore QC and Mr Ware of Counsel for the second and third respondents
Herbert Smith Freehills for the applicant
City Legal for the first respondent
King & Wood Mallesons for the second and third respondents
- The Application in pending proceeding before the Court seeks orders for further disclosure. More particularly, the applicant seeks an order compelling:
- (a)Council, the first respondent, to disclose four categories of documents said to be directly relevant to an issue/s in dispute (‘Paragraph 1’); and
- (b)the second and third respondents (‘the Dexus parties’) to disclose a document described as the Facilitation agreement (‘Paragraph 2’), which is also said to be directly relevant to an issue/s in dispute.
- The application came on for hearing before me on 8 October 2021. At the outset, Mr Hughes QC sought an order adjourning the hearing in relation to Paragraph 1. I acceded to this request. This part of the application was adjourned, with Council’s consent, to 22 October 2021.
- Oral argument proceeded before me in relation to Paragraph 2 of the application.
- The Dexus parties opposed Paragraph 2 of the application.
- By way of background, the applicant’s Amended Originating Application (AOA) seeks declaratory relief and consequential orders in relation to the validity of a development approval granted by Council’s delegate on 17 December 2020. The approval facilitates a significant redevelopment of Eagle Street Pier.
- The land to which the development application, and subsequent approval, relates is described in paragraph 17 of the AOA as follows:
“The land, as described by the Second Respondent in the development application for the proposed development is said to include three standard freehold lots (located at 193 (part) and (197 Mary Street) (“Lot 40”) and 45 Eagle Street (“Lot 50”), Brisbane) with the balance land comprising the following leasehold lots of crown land:
(a) 4 leasehold lots over the Eagle Street Road Reserve; and
(b) 2 large leasehold lots below the high watermark within the Brisbane River (Lots 11 and 12 on SL12763).”
- As is pleaded in paragraph 17 of the AOA, the land the subject of the development application includes Lots 11 and 12 of CP SL12763. The Dexus parties have a registered interest in this land as sublessees. The common material before the assessment manager indicated that a ‘Facilitation agreement’ had been reached with the Crown that made provision for the conversion of ‘up to 1,800m2 of Dexus’ existing long term leasehold interest on the site’. This was said to ‘facilitate the development and for the development assessment process…to be undertaken with Council as the assessment manager’. It does not appear to have been suggested this conversion would occur prior to the exercise of the assessment manager’s decision making power under the Planning Act 2016.
- By their solicitor’s open letter dated 8 September 2021, the Dexus parties made an admission in relation to the Facilitation agreement. The admission, is consistent with the common material before the assessment manager, and is in the following terms:
“Our clients are prepared to admit, in this open correspondence, that the Facilitation Agreement does facilitate the conversion of an area of up to 1,800m2 of our clients’ existing long term lease interests (in Lot 11 of CP SL 12763) in the site to freehold. It is the same area referred to in paragraph 63 of the Amended Originating Application.”
- It is common ground Council’s delegate, as the assessment manager, assessed and decided the development application for the redevelopment on the footing it was code assessable. The level of assessment was determined by reference to Table 5.9.17.A of Council’s planning scheme, City Plan 2014. This table applies to the making of a material change of use in the City Centre neighbourhood plan area. Where land is included in this area and, as here, also included in the Principal centre zone, the table provides that a material change of use will require impact assessment in the following circumstances:
“If involving a new premises or an existing premises with an increase in gross floor area, where:
a. greater than the maximum building height or tower site cover specified in Table 18.104.22.168.3.C of the City Centre neighbourhood plan code; or…”
- Table 22.214.171.124.3.C of the City Centre neighbourhood plan code states, in part:
Maximum building height
Maximum tower site cover
Where on a site of over 3,000 m2
45% for non-residential towers utilising transferable site area…
- The phrase ‘Tower site cover’ is defined in a ‘Note’ following table 126.96.36.199.3.C as follows:
“Note – Tower site cover (TSC) is:
- the combined average of the 10 largest storeys of each building (being the full area of any storey located wholly or partially above 20m above ground level) as a portion of the original site area;
- calculated as the area bounded by the outside of the external wall, including balconies but excluding projections.”
- The AOA seeks a number of declarations, including that the development approval granted is invalid and of no effect. The grounds of challenge relied upon in support of the relief sought can be stated in summary form as follows:
- (a)the development application was impact rather than code assessable because the development has a site cover and building height greater than that stated in Table 188.8.131.52.3.C;
- (b)the development application was not properly made because it did not include the consent of the applicant in relation to two easements burdening the land the subject of the development application;
- (c)changes to the development application made before the decision notice was given were not a minor change as defined in the Planning Act 2016;
- (d)the assessment manager’s delegate failed to find non-compliance with City Plan 2014;
- (e)the assessment manager’s delegate failed to properly assess the development application against overall outcomes of relevant assessment benchmarks; and
- (f)the assessment manager’s delegate erred in his approach to the exercise of the discretion under s 60(2) of the Planning Act 2016.
- The applicant contends the Facilitation agreement is directly relevant to issues in dispute and its production is necessary for the just resolution of the proceeding. More particularly, the applicant submits the Facilitation agreement is directly relevant to the following issues in dispute, namely:
- (a)the level of assessment point (paragraphs 63, 64, 66 and 68 of the AOA);
- (b)the failure to find non-compliances with City Plan 2014 point (paragraph 36 (b), (c), (d) and (f) of the AOA); and
- (c)the minor change point (paragraphs 50(b) to (e) and 51 of the AOA).
- Mr Gore QC and Mr Ware correctly submitted that, given the proceeding is one commenced by Originating application, the applicant has no entitlement to disclosure. Rule 209(1) of the Uniform Civil Procedure Rules 1999 however contemplates the Court may direct disclosure take place. Disclosure will be ordered in an appropriate case if to do so is in the interests of justice and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. Where an order is to be made to achieve this purpose, it should be suitably-tailored.
- Is the facilitation agreement directly relevant to an issue in dispute?
- This question is resolved, in my view, in the negative for five reasons.
- In the first instance, the Facilitation agreement provides a mechanism for the conversion of a leasehold interest in Crown land to freehold at a future point in time. The land to which this agreement relates forms only part of the subject land. Neither the agreement, nor the foreshadowed conversion of the interest in that land, change this fact. Nor would the conversion, once perfected, alter the area of land to which the development application, and subsequent approval, relates. The Facilitation agreement also provides a mechanism for the realignment of a boundary internal to the land. This is required to ensure future development is contained within freehold land. This realignment, and the associated change in interest, is not directly relevant to an issue in dispute. At its highest, it is a matter of background. That background is not in dispute. It is the subject of an admission, which is set out in paragraph . The admission is of the kind contemplated by r 211(3) of the Uniform Civil Procedure Rules 1999.
- Second, the proceeding is akin to judicial review of the exercise of the planning discretion under the Planning Act 2016 to approve a code assessable development application. Whilst the common material before the delegate made reference to the Facilitation agreement in general terms consistent with the admission made by the Dexus parties, there is no suggestion on the available evidence that the agreement played a part in the exercise of the discretion in relation to: (1) the level of assessment; (2) compliance with City Plan 2014; and (3) the minor change issue.
- Third, the level of assessment point turns on whether the maximum Tower site cover or maximum building height for the development exceeds that stated in Table 184.108.40.206.3.C. The Facilitation agreement will not directly prove the height of the development proposed nor inform the resolution of this issue. Nor will it prove, in whole or part, the Tower site cover for the development. More particularly, it will not prove: (1) the ‘combined average of the 10 largest storeys’ of the proposed built form; and (2) the ‘original site area’. Paragraphs 63, 64, 66 and 68 of the AOA do not suggest a basis to conclude otherwise.
- Fourth, the mechanism for, and ultimate conversion of the Dexus parties’ interest in land is irrelevant to questions of compliance with City Plan 2014. Compliance or otherwise is to be determined by reference to the common material and the assessment benchmarks in the planning scheme. Paragraph 36 of the AOA does not suggest a basis to conclude otherwise.
- Fifth, the mechanism for, and ultimate conversion of the Dexus parties’ interest in land is irrelevant to whether a change proposed to the development application was a minor change as defined in the Planning Act 2016. This issue is resolved by reference to, inter alia, the common material and statutory definition. Paragraphs 50 and 51 of the AOA do not suggest a basis to conclude otherwise.
- Mr Gore QC invited me to inspect the Facilitation agreement under r 223(5) of the Uniform Civil Procedure Rules 1999. It was submitted this would assist me to determine whether the document is directly relevant to an issue in dispute. I took up that invitation and examined the document. That exercise confirmed the document is large and has no bearing on the issues in dispute in this proceeding. The document is not directly relevant to an issue in dispute for the reasons given above.
- In the circumstances, I am not satisfied an order compelling the disclosure of the Facilitation agreement is in the interests of justice. Nor is such an order required to facilitate the just and expeditious resolution of the real issues in the proceeding at a minimum of expense.
- Paragraph 2 of the Application in pending proceeding is dismissed.
- I will make arrangements for my associate to place the Facilitation agreement in a sealed envelope and have it returned to the Dexus parties’ solicitor.
- I will hear from the parties as to further orders that should be made in relation to Paragraph 1 of the Application in pending proceeding.
 This is admitted at paragraph 1B of the ‘Response to the Amended Originating Application by Dexus & PTC’.
 Court doc no. 58; Affidavit of Cowan, p.44 of the exhibits.
 Court doc no. 56; Affidavit of Vella, p.7 of the exhibits.
 Outline of submissions, para 13.
 Outline of submissions, para 24.
 Citing Rule 209(1) of the UCPR, which is made applicable by r 4(2) of the Planning & Environment Court Rules.
 Waratah Coal Pty Ltd v Nicholls & Anor  QSC 68, .
 Waratah Coal Pty Ltd v Nicholls & Anor  QSC 68, .
 Compare paragraphs  and  above.
 Affidavit of James Andrew Heading, affirmed 22 September 2021, paras 49 to 64.
 Affidavit of James Andrew Heading, affirmed 22 September 2021, paras 33 to 46.
 Affidavit of James Andrew Heading, affirmed 22 September 2021, paras 47 and 48.
- Published Case Name:
Riverside Development Pty Ltd v Brisbane City Council & Ors
- Shortened Case Name:
Riverside Development Pty Ltd v Brisbane City Council
 QPEC 56
Williamson QC DCJ
22 Oct 2021