01/12 SCANLON PROPERTY GROUP PTY LTD v SUNSHINE COAST REGIONAL COUNCIL QPEC 1
(Rackemann DCJ - 24 January 2012)
Request for permissible change – likelihood of submission objecting to change – evidence from members of the public – substantially different development deferral of consideration of some changes – ss. 367 and 369 of the Sustainable Planning Act 2009
Facts: Scanlon Property Group Pty Ltd (Scanlon) applied to the Court for a permissible change to an existing Court-ordered development approval for a mixed use development, including residential and other uses. The proposed changes included proposed staging of the development, alterations to the commercial building, increased car parking, re-design of internal traffic arrangements, internal design changes, an amendment to the stormwater plan, an extension to the currency period for the approval, the addition of two outdoor dining areas and the addition of juliette balconies.
The key issues for the Court’s consideration were whether the proposed changes resulted in substantially different development, and whether the changes would be likely to cause a person to make a properly made submission objecting to the proposed changes if the circumstances allowed.
The Court was provided with evidence in the form of two letters from interested members of the public opposing the changes. Those letters objected to the outdoor dining component as well as other aspects of the proposed changes.
Scanlon obtained an expert acoustic report which concluded that the proposed outdoor dining would be acceptable in this case. However the expert report had not been provided to those who say they are concerned. Further, the report only referred to the outdoor dining and did not contain an analysis of the balconies.
Scanlon asked the Court to defer its consideration of the outdoor dining areas and the juliette balconies, and only sought a decision on the other proposed changes to the development.
Decision: The Court held that:
- In relation to the likelihood of submissions, the question is not whether the change would cause a person to make a submission which would ultimately be upheld in the sense of leading to a refusal on the merits. Rather, the question is whether the change would cause a submission objecting to the changes to be made.
- In relation to the changes other than the outdoor dining and balconies, it was unlikely that they would provoke someone to make a properly made submission objecting to those aspects of the change. Also, they did not result in a substantially different development or otherwise fall outside the parameters of a permissible change.
- The Court was prepared to make an order allowing the changes, and deferring the consideration of the balconies and the outdoor dining.
02/12 DEMPSEY v BRISBANE CITY COUNCIL  QPEC 2
(R S Jones DCJ - 9 February 2012)
Whether change to proposed development a minor change – multi-unit dwelling – words and phrases “substantial” - s.350 Sustainable Planning Act 2009
Facts: This was an Application for Orders that changes to a development proposal constituted a minor change for the purpose of s.350 of SPA.
The appeal concerned an Application for a multi-unit dwelling. The more substantive changes were identified as the reduction in the number of storeys from 6 to 4, a reduction in the number of units from 6 to 4, and a reduction in GFA of about 32%.
Decision: The Court held, that the changes to the proposed development were a minor change:
- While there was reference to “additional” impacts in the Statutory Guideline, when reference was made to the scale, bulk and appearance of a development it was not restricted to only increases, but was concerned with changes to the built form in terms of scale, bulk and appearance.
- It would be wrong to only focus on the magnitude of the changes. The question that has to be asked is whether the changes result in a substantially different development having regard to the nature and degree of the changes.
- The meaning of such an imprecise and ambiguous word as “substantial” was highly dependant on the context in which it appears.
- While the changes to the proposal could not be described as anything other than significant, they did not, either separately or in combination, result in a substantially different development.
03/12 COMISKEY GROUP (A FIRM) V MORETON BAY REGIONAL COUNCIL & ORS  QPEC 4
(R.S. Jones DCJ - 17 February 2012)
Whether change to proposed development a minor change – change required referral to an additional referral agency – ss.350, 440, 441 and 840 Sustainable Planning Act 2009
Facts: An application had been brought for Orders that changes to the proposed development constituted a minor change for the purposes of s.4.1.52(2)(b) of IPA and s.350 of SPA.
The development application was for a material change of use and for a development permit for reconfiguring a lot to facilitate a staged residential subdivision.
The relevant changes to the proposal involved a change in design and construction of a proposed bridge connecting the subdivision on an island pad to the south; filling part of a proposed lagoon; the fill on the island pad was to be increased by about 1.1m; and backfilling to the west of the island pad.
The filling of the lagoon involved filling below RL 5m AHD. That required referral to the Department of Environment and Resource Management (DERM). An acid sulphate soil issue arose calling up the referral agency.
The Respondent submitted that pursuant to s.350(1)(d)(ii) the change was not a minor change. The Appellant relied upon ss.350(2) and (3) to contend that the requirement that the application be referred to DERM as an advice agency was not fatal. In so doing it emphasised the different roles and responsibilities of advice agencies and concurrence agencies under the IPA.
The Appellant also submitted that even if the change were not a minor change, the Court retained a discretion based upon ss.440, 441 and 840 of SPA.
Decision: The Court held, in refusing the application, that:
- Notwithstanding a significantly different visual appearance of the new bridge when compared with the original design, this change could only be described as minor when considered in the light of the nature and extent of the proposed subdivision.
- Sub-sections (2) and, in particular, (3) of s.350 did not have the meaning and effect contended for by the Appellant. The trigger for the referral had nothing to do with any changes to the “applicable law”, but was instead a direct consequence of proposed new works. The Explanatory Notes to the Sustainable Planning Bill 2009 were clearly against the position adopted by the Appellant.
- Sections 440, 441 and 820 of SPA did not assist the Applicant. ss.440 and 820 had no relevance in the circumstances of this application as it did not involve compliance, non-compliance or partial compliance with a statutory provision. Section 441 gives wide powers to the Court to make Orders it considers appropriate in the circumstances of each case. However, any Order must be made in accordance with the relevant law. To make the Orders sought by the Applicant would be in direct conflict with, and defeat the intent of, s.350(1)(d)(ii) of SPA and, accordingly, would not be “authorised”.
- Given the level of unresolved differences of opinion between the parties’ experts, the Court was not sufficiently satisfied that the proposed changes would not result in a substantially different development by introducing significant new impacts and/or increasing the severity of known impacts.
04/12 SCANLON PROPERTY GROUP PTY LTD v SUNSHINE COAST REGIONAL COUNCIL  QPEC 5
(Rackemann DCJ – 10 February 2012)
Application to amend a development approval – whether changes unlikely to cause a person to make a submission objecting to the proposed changes – s.367 Sustainable Planning Act 2009
Facts: This was a further application to amend a development approval. An Order had been previously made granting certain amendments, but not changes relating to inclusion of outdoor dining areas and of some Juliette balconies to the accommodation proposal.
The Court had particular regard to s.367 of SPA as to the definition of “permissible change” and in particular, sub-section 1(c) requiring the formulation of an opinion as to whether the changes would be likely to cause a person to make a properly made submission objecting to the proposed changes if the circumstances allowed.
The Applicant had obtained a further report from a noise consultant.
People who had previously indicated a desire to have an opportunity to make an objection had again indicated such a desire, notwithstanding the acoustic report.
Decision: The Court held, in dismissing the application, that:
- The statutory provisions should be read as requiring the entity to consider whether someone would make a properly made submission objecting to the proposed change on a relevant basis, at least.
- If the Court was deciding the matter today as a matter of merit, the additional report would support an approval. However, the question was not whether the Court was prepared to approve a development in the amended form if that were the only material available upon the hearing of an appeal, but whether in the circumstances, in light of the material it could form the opinion that the changes would be unlikely to cause a person to make a properly made and, relevant, submission objecting to the proposed changes if the circumstances allowed.
- In light of the material that had been received from those who say they wished to have that opportunity, and having regard to the at least relevant grounds that are included in their material, the Court was not satisfied that the changes would not be likely to cause a person to make a relevant submission objecting to the proposed changes.
05/12 RAINBOW SHORES PTY LTD v GYMPIE REGIONAL COUNCIL  QPEC 6
(Rackemann DCJ – 9 February 2012)
Application for leave for expert to depart from opinion expressed in joint report – Rule 30(3) Planning and Environment Court Rules 2010
Facts: This was an application by which the Co-Respondent sought leave for its waste water disposal expert to provide additional evidence which departed from opinions expressed in earlier joint reports. Leave was required pursuant to R.30(3) of the Planning and Environment Court Rules 2010.
A previous joint report had reached agreement about the suitability of proposed effluent disposal arrangements. In a further joint report the Co-Respondent’s expert foreshadowed that he wished to depart from opinions expressed in the earlier joint report, and to raise concerns similar to those which he had raised at the outset, but in respect of which he had been satisfied at the time of the joint report. In order to analyse his concerns, he undertook further modelling which, he said, showed that there were difficulties with the proposal. When that matter had been raised, there had been interruption to the trial, and a few days where no evidence could be taken.
Decision: The Court held, in granting leave, that:
- The general prohibition on an expert departing from a position in a joint report, save by leave, served a number of purposes.
- One of those purposes was to make sure that the experts treat the joint report process with appropriate respect, and properly prepare, and properly participate fully rather than simply regarding it as a preliminary step which they can easily depart from later on.
- Another purpose is to guard against the prospect of experts easily departing from opinions reached in a joint report should they be subsequently prevailed upon by their clients or others to do so.
- A further objective is to ensure the preparation for trial can proceed on the basis of some certainty as to what the expressed views are, such that surprises are unlikely or at least are minimised.
- The requirement to obtain leave also ensures that any departure is accompanied by some explanation of the circumstances and the reasons for the departure.
- In this case there was no suggestion that the expert had been prevailed upon by the lawyers. The explanation was somewhat thin. However, the Court was inclined at this stage to accept that it was genuine. If the Co-Respondent’s expert was to give evidence, he should be able to give evidence of what his current views are.
- It was both within the jurisdiction of the Court, and appropriate, for there to be an Order in relation to costs of this application.
- In terms of the costs thrown away by the grant of leave, such an Order should be made, but there was no purpose in making it now, because the Court could not decide on the basis of it. The Court would have been prepared to make an Order on the standard basis, but the Appellant wished to push for indemnity costs, and the Court was not minded to make that decision until and unless it heard the evidence.
06/12 STEVENSON GROUP INVESTMENTS PTY LTD v NUNN & ORS  QPEC 7
(Searles DCJ - 17 February 2012)
Application for costs – whether proceedings frivolous or vexatious – basis for assessment of costs – s.4.1.23 Integrated Planning Act 1997
Facts: These were two applications for costs pursuant to s.4.1.23 of the IPA resulting from an Order for summary judgment made against the Applicant in December 2001.
The first application was that of various Respondents (“Tangalooma”). The other was by the Council which sought only the costs thrown away on the adjournment of the hearing. Tangalooma’s primary submission was that the Applicant pay its costs of and incidental to the entire proceeding on the grounds that the proceedings were frivolous or vexatious. It also sought those costs on an indemnity basis.
Tangalooma relied on three grounds to claim that the proceeding was frivolous or vexatious, namely the fact that summary judgment was given in its favour on the basis that all facts alleged by the Applicant were assumed to be true, which demonstrated that the proceeding were wholly unmeritorious and devoid of any prospect of success or utility; that the Applicant proceeded with the action in the face of notice from Tangalooma as to its views as to the poor prospects of success, and that costs would be claimed; and the history of the conduct of the proceeding demonstrated disregard by the Applicant for its obligations and implied undertakings to the Court.
Decision: The Court held that:
- The Court was not prepared to find that the proceeding was commenced other than in good faith, however misplaced that may have been.
- The proceeding did attract the categorisation as frivolous or vexatious. In seeking the declaration, the arguments made were such that there was no reasonable basis for starting it. It had no reasonable prospects of success from the outset, caused Tangalooma serious and unjustified trouble and harassment having regard to its impact not its motivation.
- Tangalooma was faced with an application for discretionary relief in the form of a declaration. Even had it thought an earlier application for summary judgment was warranted, it was faced with repeated pleading amendments right up to trial. The fact that, in hindsight, at another point in the proceeding there may have been afforded an opportunity to make an application for summary judgment which was not availed of, did not, without more, render the party disentitled to costs it may otherwise be entitled to.
- Conscious of the importance of the public policy considerations behind s.4.1.23, the Court was satisfied that the circumstances of the case warranted the payment of Tangalooma’s costs by the Applicant.
- The granting of indemnity costs was not appropriate.
07/12 SUNSHINE COAST REGIONAL COUNCIL v RECORA PTY LTD  QPEC 8
(Robertson DCJ - 24 February 2012)
Application for declaration – non-payment of contributions – requirement that Applicant pay contribution prior to the commencement of use or issue of a Certificate of Classification – discretion - ss.3.5.28 and 4.3.3(1) Integrated Planning Act 1997 – s.580(1) Sustainable Planning Act 2009
Facts: The Council sought declarations that the present registered proprietor of the subject land had committed, and was committing, a development offence for its refusal to pay contributions required by a development approval. It also sought enforcement orders in that regard.
The proceedings focused upon the proper construction of certain infrastructure contribution conditions which required the Applicant to pay monetary contribution prior to the commencement of use, or issue of a Certificate of Classification, whichever was the sooner.
Recora had contracted to purchase the site from a predecessor in title in March 2008. The contract subsequently settled, and the use commenced. At the time of the completion of the contract, the infrastructure contributions remain unpaid. A search undertaken with the Council on behalf of Recora for the purposes of the purchase of the land was not sufficient to bring that fact to its notice. Council contacted Recora about the outstanding charges in January 2011.
The Respondents argued that Recora had not committed a development offence, because after the date of the issue of the Certificate of Classification, the conditions were incapable of being complied with on a proper construction of those conditions. That was, each required an action to be taken by a specific date which fell before Recora became a successor in title to the original Applicant.
Decision: The Court held in making the declaration, that:
- The Respondent’s argument could not be accepted. Pursuant to s.3.5.28 of the IPA, which applied to the permit at the time, the approval attached to the land and bound the owner and the owner’s successors in title.
- The Respondent’s approach tended to isolate the relevant words in the conditions from the remaining important terms and the whole approval in a highly technical way, and ignored the principle that those who take the benefit of an approval should pay their share of demand on infrastructure created by development.
- The conditions were straightforward and in conventional terms. Each condition imposed an obligation on the Applicant, and as a matter of law on their successor in title, to pay an amount calculated by reference to the policy applicable at the time of payment. The condition set a deadline to pay which had passed by the time Recora assumed the benefit of the approval. The failure to pay in a timely way did not discharge the responsibility to pay contributions, nor did it sever the condition from the approval.
- The condition still bound Recora and was one that was, and still is, breached by non-performance.
- Section 580 of the SPA was in clear terms. A development offence was committed upon contravention of a development approval including any condition in the approval. Once Recora’s construction of the relevant conditions was rejected, it was clearly contravening the conditions by not paying the contributions.
- Section 580(1) of the SPA was in identical terms to s.4.3.3(1) of the IPA, which would have applied at the time the conditions were first contravened by non-performance by the original beneficiary of the approval.
- In all the circumstances, the Court was prepared to make the declaration sought.
08/12 GLADSTONE PORTS COPORATION LTD v QUEENSLAND HERITAGE COUNCIL QPEC 9
(Jones DCJ - 28 February 2012)
Appeal against decision of the Queensland Heritage Council to list premises on the Queensland Heritage Register – which party bears onus of proof – ss.35(a) and (g), 161, 162 and 163 Queensland Heritage Act 1992 – s.4.1.50 Integrated Planning Act 1997
Facts: The Respondent had decided to enter the Port Curtis Sailing Club Clubhouse on the Queensland Heritage Register. The Appellant had appealed that decision. The issue for determination was which party bears the onus of proof in the substantive appeal.
The Appellant contended that the Respondent should bear the onus in proving that the clubhouse satisfies criteria contained within s.35(a) and (g) of the Queensland Heritage Act 1992. The Respondent contended that the Appellant bears the onus of proving that it does not.
In support of its argument, the Appellant suggested the following features of the appeal supported the view that the Respondent bears the onus: entering a place in the Heritage Register has the potential for serious adverse impacts upon owners property rights without compensation entitlement; practical procedural considerations and matters of fairness; and presumptions of statutory interpretation and, in particular, the appeal processes under the QHA and the IPA.
The Respondent submitted that there was no scope for the operation of any presumption in favour of the Appellant, and that there was no reason why the ordinary rule in relation to appeals (that the person who challenges the decision below ought to bear the onus of proof) should not apply; and that that raised no issues concerning the practical procedures in the appeal, or fairness.
Decision: The Court held, in dismissing the Application, that:
- Authorities dealing with the construction of statutes purporting to interfere with an individual’s property rights were not particularly relevant to the determination of this Application.
- There were no practical procedural matters or considerations of fairness involved in this case which would require the Respondent to bear the onus.
- When the relevant provisions of the QHA and the IPA were read together, there was no basis for concluding that the orthodox legal convention was displaced. That conclusion raised no conflict between the relevant provisions of the QHA and the IPA. When those provisions were read in context, it could not be said that that construction lead to unjust or inharmonious consequences.
- On a proper construction of the relevant provisions of the QHA and the IPA, the Appellant bears the onus of proving that the clubhouse should not have been entered in the Register.
09/12 TOWERS v BUILDING AND DEVELOPMENT DISPUTE RESOLUTION COMMITTEE & ORS  QPEC 13
Application to strike out proceedings – appeal from Building and Development Dispute Resolution Committee commenced out of time – Application for extension of time – whether grounds contained in appeal are valid grounds – s.39A Acts Interpretation Act 1954 – s.497 Sustainable Planning Act 2009
Facts: Mr Towers sought to challenge a decision of the Building and Development Dispute Resolution Committee regarding the siting of a structure on premises. Mr Towers had filed an Originating Application which sought both an extension of time in which to appeal, and Orders allowing the appeal.
The Council had filed an Application seeking Orders that Mr Towers’ proceedings be struck out. It relied on three grounds. Firstly, that Mr Towers was out of time to institute an appeal; secondly, that he had not identified any appropriate grounds sufficient to warrant an extension of time within which to institute an appeal; and thirdly, that the grounds were not valid grounds of appeal.
The Court was required to consider whether the proceedings had been commenced within time. That, in turn, required consideration of s.39A of the Acts Interpretation Act regarding service by post. On the worst possible view of matters for Mr Towers, his proceedings had been commenced 8 business days late.
Decision: The Court held that:
- The grounds included at least one relevant ground which could be a proper ground of appeal.
- Having regard to the extent of delay in instituting proceedings; the explanation for the delay; the absence of any prejudice to the Respondent in defending the proceedings if an extension were granted; and the fact that the grounds of appeal included at least one which appeared relevant and arguable, on balance the interest of justice would be best served by granting an extension of time.
10/12 KCY INVESTMENTS (NO. 2) PTY LTD v REDLAND CITY COUNCIL & ANOR  QPEC 17
(Durward SC DCJ - 22 February 2012)
Appeal against conditions – approval requiring an Application for a permissible change to be made and approved which removed restrictive conditions imposed upon an earlier Consent Permit – whether the earlier conditions attached to the land – whether the development would contravene those conditions – s.4.13 Local Government (Planning and Environment Act 1990) – ss.3.5.13, 3.5.28, 4.3.3, 6.1.23, 6.1.24 Integrated Planning Act 1997 – ss.369, 50, 801 and 819 Sustainable Planning Act 2009
Facts: This was an appeal against a refusal of an Application for a material change of use for a dwelling house on land at Point Lookout. The proposal was code assessable and was a consistent use in the Conservation Zone under the 2006 Planning Scheme.
The issue was whether conditions of a 1994 approval, requiring protection and retention of vegetation and dunal topography, continued to attach to the land and bound the Appellants as owners of the land.
In February 1994 a Consent Order had been made under the Local Government (Planning and Environment) Act 1990 (P&E Act) approving 59 units, subject to conditions. The conditions of approval in Consent Permit C2307 (granted in April 1994) included a requirement for agreement of proposed measures to protect existing vegetation and trees; and to protect and retain dunal topography and existing vegetation.
In May 1994 the Council approved an application to subdivide the site into three lots. That was also subject to conditions which required that the existing vegetation and associated dunal topography in the south-eastern corner be protected and retained, with no further development being permitted within that area.
In May 1998, the Court amended its 1994 Order by modifying the plans of development subject to amended conditions. The material conditions were retained and renumbered in Consent Permit CT230700.
The site for the proposed development on the new Lot 4 was located in the area marked “existing vegetation to be retained”on plans identified in conditions of the 1994 Consent Permit C2307.
The issue in the appeal was whether the 1994 conditions, which were incorporated into the modified 1998 approval, continued to apply to the land and whether the proposed development contravened those conditions. That was, whether the proposed development was precluded by reason of a continued application of the material conditions; and the proposed conditions of approval of the development (3 and C.(a)). The conditions in dispute for the appeal were limited to those conditions. They prevented the development from starting until such time as a request for a permissible change had been lodged and approved, which amended or deleted all conditions of Consent Permit C2307.
The Court had regard to s.4.13 of the P & E Act; ss.3.5.13, 3.5.28, 4.3.3, 6.1.23 and 6.1.24 of the IPA; and ss.245, 369(1), 580, 801, 819 and 850 of SPA.
The Appellant submitted that the 1994 conditions no longer applied. Alternatively, it submitted that the proposal, being code assessable, was not affected by the 1994 conditions, which related to different development, different land and a different Planning Scheme. It submitted that the two material conditions from 1994 could not be interpreted literally; and the proposed management measures would not be contravened by the proposal because it was a lawful code assessable development, complied with the Planning Scheme, and respected the degree of environmental protection intended by the 1994 conditions. The Appellant also referred to the supremacy of proprietary rights of land owners with respect to a tension between ss.3.5.28 and 3.5.13 of the IPA.
The Council submitted that the proper construction of the IPA, and the proposed conditions, did not interfere with any relevant proprietary right, and that the requirement for owner consent to a development application satisfied any question about proprietary rights. The Council contended that the conditions continued to attach to the land.
The Co-Respondents submitted that the conditions were not about any particular development, but about development generally, and that the conditions could not be taken away merely by reconfiguration of a lot. They submitted that no development permit could lawfully issue because the proposed development could not lawfully be started while the 1994 conditions continued.
Decision: The Court held that:
- The 1994 conditions went further than compliance with the Codes, attached to the land, and bound the Appellant as the owner.
- The contention that the 1994 conditions did not impose a requirement that there be no development of any kind on the land was contrary to what was clearly and unequivocally expressed in the 1994 conditions. That was, that the area marked as existing vegetation to be retained on the plan was to remain undeveloped; and the dunal topography and vegetation in the area marked as existing vegetation to be retained was to be protected and retained.
- The site of the proposed development and the building footprint was clearly within the area to remain undeveloped. The proposed development thus contravened the 1994 conditions.
- There was no tension between s.3.5.13 and 3.5.28 of IPA. The sections were not at odds with one another. They were each directed to matters that did not give rise to any conflict on any reasonable, literal or purposive construction of them.
- If the appeal were allowed, and Conditions 3 and C(a) were not applied to the development approval, the Appellant would commit a development offence if it commenced the development, by contravention of the conditions of the earlier approval.
- The development application should be approved subject to the Appellant taking the necessary steps to free the land of the conditions of the earlier approval.
11/12 SUNLAND GROUP LIMITED v TOWNSVILLE CITY COUNCIL & ANOR  QCA 30
(Muir and Fraser JJA and Margaret Wilson AJA - 28 February 2012)
Court of Appeal – Application for leave – whether error in finding conflict with the Planning Scheme – whether error in construing and applying policy – adequacy of reasons – whether remitted matter to be heard by same Judge
Facts: This was an Application for leave to appeal against a decision of the Planning and Environment Court which allowed a submitter appeal. That appeal concerned Council’s approval of an application for a material change of use to facilitate development of a Neighbourhood Centre.
In allowing the appeal, the primary judge had concluded that the proposal conflicted with the provisions of the Planning Scheme in that it sought to use land identified for use as a Convenience Centre for a higher order use; it used residential land for commercial purposes; it sought to increase the area restriction for commercial activity permitted by the Planning Scheme; could not be described as being of a “domestic scale”; and did not meet only the needs of the immediate residential population. The Primary Judge then considered whether the proposal should be approved, notwithstanding its conflict with the Scheme. He concluded that need had not been established. The merits of the proposal were otherwise dealt with in three brief paragraphs.
Sunland contended that the primary judge erred:
- in finding that the proposal conflicted with the Planning Scheme;
- in construing and applying the Council’s Urban Growth Policy (“UG Policy”); and
- by failing to give adequate reasons.
Decision: The Court held that:
- A conflict with a Planning Scheme was not to be found only where the approval of an application would have a consequence which the Scheme expressly identified as a conflict. Whether or not a conflict existed was to be determined by a consideration of the relevant provisions of the Planning Scheme in light of all the relevant facts.
- It had not been shown that the primary judge erred in finding a conflict with the Scheme resulting from the proposed use of the land as a Neighbourhood Centre. Such a use would prevent the use of its land for its designated use as a Convenience Centre.
- Although it appeared that there was conflict with the Scheme, it was preferable, having regard to the necessarily limited ventilation of factual questions before this Court, to express no concluded view on the point.
- No error or law in the primary judge’s treatment of the UG Policy was identified.
- The existence of a conflict or conflicts was by no means obvious. In order to decide the question it was necessary to identify and construe the relevant provisions of the Scheme and, in some instances, to consider the application to the facts of the provisions so construed.
- It was thus incumbent on the primary judge to provide adequate reasons for his conclusions as to the existence and extent of conflict. Failure to give such reasons would be an error of law.
- The primary judge’s reasons as to the existence of conflict essentially consisted of assertions. There was no discussion or even identification of the critical provisions of the Scheme. The process of reasoning in which the critical conclusions were reached was not identified even in a rudimentary way. Consequently, Sunland had succeeded in identifying an error of law.
- The reasons did not explain, adequately, the findings of the primary judge in relation to the expert evidence, the reasons for such findings or why the arguments advanced by the Council and Sunland as to why the proposal should be approved, notwithstanding inconsistency, were rejected. The inadequacy of the reasons in that regard also constituted an error of law.
- The matter should be remitted to the Planning and Environment Court.
- Whilst not doubting the primary judge’s ability and capacity to determine the matter according to law, consistently with these reasons, any re-hearing should be before a different judge in order to avoid a real risk of allegations of apprehended bias with the attendant possibility of a further appeal and delays.