27/14 KADHEM v TRINITY GREEN DEVELOPMENT PTY LTD [2014] QPEC 36

Jones DCJ - 3 July 2014
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Application – leave to appeal – whether time for filing notice of appeal expired – whether if time for filing notice of appeal had expired leave ought be granted – whether reasonable explanation for delay – whether applicant had reasonable prospects of success in the substantive appeal if leave granted – whether fairness dictated that leave be granted – costs.

Facts:  This was an application for leave to appeal against Council’s decision to approve a development proposal advanced by Trinity Green Development Pty Ltd (Trinity) where the time for filing a notice of appeal under the Sustainable Planning Act 2009 (Qld) (SPA) had expired.

Following the end of the appeal period, the Applicant filed a document purporting to be a notice of appeal which stated the grounds of appeal were: “we are requesting an extension to the appeal lodgement deadline to have more time to organise the appeal properly.”  The Applicant subsequently filed two documents described as applications in pending proceedings which set out a number of grounds upon which the Applicant contended that the proposal should be overturned, including on the basis of preservation of open space and protection of koala habitat areas.

The issues for the Court’s consideration were whether the purported notice of appeal was filed out of time, and if it was, whether there were sufficient reasons, despite the delay, to grant the Applicant leave to appeal.

The Applicant led evidence that he had acted on advice of the Court registry in filing his material.  The Applicant argued that because of the alleged representations made by the Court registry, he had complied with the SPA and, if he had not, any non-compliance should be excused because of the advice given.

Trinity opposed the application on the basis that the grounds of appeal disclosed no reasonable cause of action. 

No application for costs was made by Council.  Trinity submitted that costs should follow the event.

Decision:  The Court held, in dismissing the application

  1. The Applicant had not complied with the relevant provisions of the SPA dealing with the filing of a proper notice of appear
  2. The Court’s discretion in deciding whether or not to extend time was a wide one and one that ought not be fettered by reference to rigid criteria such as the need for exceptional circumstances.
  3. Even without subjecting the Applicant’s material to any substantive scrutiny, the Applicant did not reveal a case (or potential case) with any realistic prospects of the success.  It was not a case where the interests of justice or fairness warranted an extension of time to appeal.
  4. Trinity was entitled to a favourable costs order, but such costs should be limited to no more than $750.

28/14 FALZON v GLADSTONE PORT CORPORATION [2014] QPEC 37

Andrews SC DCJ - 11 July 2014

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PRACTICE AND PROCEDURE – Pleadings – whether to strike out points of claim – whether allegations of costs and impacts were allegations of financial loss – where only persons whose interests are significantly adversely affected by the subject matter of the litigation may claim a declaration – whether the applicant sufficiently alleged material facts to establish status to apply for declarations 

Facts:  In this proceeding Gladstone Ports Corporation (GPC) applied to strike out the Points of Claim (POC) filed by the Applicant in proceedings commenced by the Applicant against GPC seeking declarations under section 54G of the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act) that GPC had not complied with certain conditions imposed on its dredging activities in the Port of Gladstone (Project).  The Applicant was a commercial fisherman in Gladstone Harbour and purported to commence the proceeding as a representative proceeding for certain persons listed in his POC (Purported Represented Class).

The Coordinator-General’s report evaluating the environmental impact statement in respect of the project imposed a number of conditions on GPC.  Specifically, Condition 20 required GPC to mitigate all reasonable financial losses to existing commercial fishing operators attributable to the Project.  Condition 21 required GPC to meet any costs associated with the investigation, negotiation and administration of any compensation package. 

The issues in dispute at the hearing were whether:

  1. the Applicant had pleaded his standing to apply for a declaration;
  2. the Applicant had pleaded sufficiently to obtain both declarations;
  3. the declarations sought were too wide to be available; and
  4. the proceeding was not validly brought as a representative proceeding. 

Standing

It was agreed between the parties that the Applicant was required to allege and establish that the Applicant was a person whose interests were significantly adversely affected by the subject matter of the proceeding pursuant to section 54F(2)(e) of the SDPWO Act.  The Applicant’s POC alleged that the Project had necessitated his incurring expenses exceeding $480,000 and had interfered with and otherwise delayed his commercial activities.  However he did not allege that the expenses or the delays had caused a financial loss to him.  The Applicant argued that he need not allege and prove his own financial loss as a material fact to establish his status as a person whose interests were “significantly adversely affected” by the proceeding. 

GPC submitted that there was no allegation in the POC that the interests of the Applicant and the Purported Represented Class were significantly adversely affected by the subject matter of the proceeding. 

Sufficiency of pleading

In relation to Condition 20, there was no issue between that parties that GPC must mitigate certain types of financial losses.  The Applicant argued in his POC that he had incurred costs with respect to additional equipment and that the program did not compensate existing commercial fishing operators.  GPC argued that the Applicant needed to plead facts which established that financial losses had been incurred and that the losses had not been mitigated by GPC.  GPC also argued that the Applicant had not pleaded sufficient allegations in relation to “existing commercial fishing operators” which on construction of Condition 20, was a necessary element to be satisfied. 

Likewise, in relation to Condition 21, the POC did not allege that the Applicant or any of the Purported Represented Class had suffered reasonable financial losses attributable to the Project by way of costs associated with the preparation, submission and prosecution of a claim, let alone plead or particularise what such losses were.

Declarations sought

GPC submitted that the declarations sought by the Applicant were too wide.  Firstly, GPC argued that the relief sought must be limited to the Applicant personally and that he was only entitled to seek a declaration that GPC’s compensation program did not substantially comply with Conditions 20 and 21 insofar as it affected him personally.  Secondly, it was argued that the declarations sought were not available to the Applicant on the basis that he had not alleged the material facts to show that he was significantly adversely affected by the issue the subject of the declarations.  Thirdly, GPC argued that the POC did not plead sufficient material facts or circumstances concerning persons other than the Applicant.

Validity of representative proceeding

In light of the above, the Court was not required to consider whether the proceeding was validly brought as a representative proceeding.

Decision:  The Court held, in allowing the application:

  1. The Applicant did not allege his expenses or the delays and interferences had caused reasonable financial loss to him, let alone a reasonable financial loss which the scheme did not mitigate.  That omission meant he did not establish a tenable case of status to claim a declaration.
  2. An obligation to compensate for financial losses was not equivalent to an obligation to compensate for increased costs.  Those increased costs may well be mirrored by financial losses resulting from those costs and in an identical amount.  However it did not necessarily follow that a financial cost or an interference with business operations had caused financial loss.
  3. In relation to Condition 20, the Applicant had:            

    (1)  made no allegation in the POC that any “commercial fishing operator” (let alone the Applicant or the Purported Represented Class) had in fact suffered any “reasonable financial losses;” and   
           
    (2)  had not sufficiently pleaded a case to establish that he and each of the Purported Represented Class were “existing commercial fishing operators,” making the entire POC liable to be struck out.
  4. In relation to Condition 21, the POC did not allege that the Applicant or any of the Purported Represented Class had suffered reasonable financial losses attributable to the Project by reason of legal and accountancy fees associated with the preparation, submission and prosecution of a claim, let alone plead or particularise what such losses were.
  5. Until the pleading alleged sufficient material facts to create a tenable argument that another relevant person sustained a reasonable financial loss which the compensation program failed to mitigate the Applicant could not rely on the Project’s consequences to any other.  If the pleading were to adequately allege a failure to mitigate all reasonable financial losses of another relevant person there may then be an issue as to whether the Applicant was significantly adversely affected by the failure in respect of that other person.  The declarations sought are too wide having regard to the material facts currently pleaded.
  6. It was too hypothetical to consider the issue of whether it was appropriate to permit the Applicant to bring a representative proceeding because it required one to foreshadow what the case would become.

29/14 JOHNSON V BRISBANE CITY COUNCIL & ORS [2014] QPEC 38

Wall QC DCJ - 18 July 2014

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Costs – application by appellant that submitter co-respondent pay appellant’s costs from a particular date – whether co-respondent thereafter acted “unreasonably” or raised issues not “properly arguable” or “lacking any substance” – whether issues raised by co-respondent were “bona fide matters of town planning relevance”

Facts:  This was an application by the Appellant that the First Co-Respondent by Election (Ham) pay the Appellant’s costs of and incidental to the appeal limited to those incurred between 17 December 2013 and 4 April 2014.

The appeal was against the Brisbane City Council’s refusal of a development application for four multi-unit dwellings on land at Toowong.

Ham was a submitter and elected to join the appeal.

Several without prejudice conferences occurred in the second half of 2013.  Under a subsequent Order, Ham notified the parties that the development application should be approved subject to conditions and identified matters which should be addressed by conditions.

Council circulated draft conditions on 17 December 2013.

On 7 January 2014, the Appellant consented to Council’s conditions.  On 8 January 2014, Ham proposed a number of additional conditions.  On 10 January 2014, further orders were made setting a hearing date and identifying the remaining issues in dispute which related to conditions concerning a construction management plan (addressing, among other things, adverse impacts on water supply standards) and traffic.

The Second Co-Respondent by Election (Queensland Urban Utilities) then joined the appeal.  In February 2014, Ham participated in expert meetings, to allow the parties’ experts to understand his views about the disputed issues.  A joint report was produced, the results of which Ham accepted and the appeal was subsequently resolved by a consent order which included different conditions.

The Appellant argued that he achieved “overall success” in the appeal and that Ham acted unreasonably in raising new or expanded issues and ignoring Court rules in relation to expert evidence.

The Appellant conceded that issues raised by Ham resulted in amendments to the draft conditions but submitted that the amendments were only narrow.

Should the application fail, Ham sought an order that the Appellant pay his costs of the application.

Decision:  The Court held:

  1. It was unfair to Ham to categorise the amendments to the draft conditions in a minimalist way.  Ham did succeed on some of the issues he raised notwithstanding the absence of his own experts, or as a result of raising them conditions were varied from the original draft or were later added.
  2. The issues raised by Ham were properly arguable and he did not act unreasonably in raising them; it could not be said that they lacked any substance.  They were bona fide matters of town planning relevance.  The extent to which he succeeded on the issues raised by him militated against the Appellant’s application.
  3. No sufficient basis had been advanced to warrant an order such as that sought by the Appellant and his application must be dismissed.
  4. The Appellant had failed completely in his application and costs should follow the event.

30/14 FRIEND V BRISBANE CITY COUNCIL [2014] QPEC 39

Robertson DCJ – 31 July 2014

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Unsuccessful submitter appeal – where appeal unsuccessful primarily on the basis of the rejection of the town planning opinion evidence of the planner relied upon by appellants

Costs – where successful developer applies for costs under s 457 of the SPA – where developer wholly successful in its appeal, primarily because of the Court’s construction of the Planning Scheme – where developer alleged submitter commenced and / or participated in the appeal for an improper purpose – where town planning expert had failed to disclose that his wife was an adverse submitter – where one of the appellants held property with the solicitor for all appellants and a commercial interest in the incorporated legal practice – whether the proceeding affected a matter of public interest – whether the appellants had acted unreasonably – where application made against (2) submitters who had filed a Notice of Discontinuance well before the hearing which had the effect of staying the effect of the Notice

Facts:  This was an application for costs arising out of an unsuccessful submitter appeal against Brisbane City Council’s approval of a development application for mixed use development on the site of the Chalk Hotel.

Costs were sought by the developer (Trentham) against submitters Mr Friend and Mr and Mrs Manning.  The appeal was commenced on 25 January 2013 and as such the parties were subject to the new costs regime in the Planning and Environment Court. 

The disputed issues in the appeal were predicated on essentially the different opinions of the expert town planners called by the parties, particularly in relation to the critical planning instrument being the Woolloongabba Centre Neighbourhood Plan, which had several drafting anomalies.  At the hearing, Trentham successfully rebutted all of the many allegations of conflict asserted by the Appellants, except in one minor aspect

Trentham’s application for costs was based on several of the matters identified in s. 457(2) of the Sustainable Planning Act 2009 (SPA), namely the relative success of the parties, whether the appeal was alleged for an improper purpose,  whether the submitters had reasonable prospects of success, whether there was any matter of public interest in the appeal, whether the submitters had acted unreasonably in the conduct of the proceeding and whether there had been any non-compliance with procedural requirements of the Court.

Trentham argued, among other things, that:

  1. Mr Friend had commenced the appeal for the improper purpose of avoiding the establishment of a precedent for the Woolloongabba area if the development application was approved and had continued the appeal even after becoming aware that    such a purpose lacked merit in a planning sense. The allegation was based on a letter sent from Mr Friend to another adverse submitter seeking to raise funds for the appeal.
  2. Mr Friend had become a director and shareholder of the legal practice acting for the appellants during the course of the proceeding and that his purpose in continuing the appeal after that point was improper as he stood to profit from the litigation.
  3. That the opinion evidence of the submitters’ town planning expert was “perverse” and that no reasonable party ought to have proceeded with the appeal based on those opinions.
  4. That Mr Friend had no reasonable prospects of success in relation to traffic issues, heritage issues and the relevance of a temporary local planning instrument.
  5. The submitters had acted unreasonably in refusing offers to settle.

Evidence was also given to the Court that the submitters’ town planning expert was married to an adverse submitter.

Decision:  the Court held, in dismissing the application for costs:

  1. There was no presumption in SPA that costs follow the event.  Nor was there a presumption that each party should bear its own costs.
  2. Although the success of Trentham was a factor which may be taken into account, it must be seen in light of the serious drafting anomalies in the Neighbourhood Plan.  Those anomalies had underpinned the opinion of the submitters’ expert which, in the absence of bad faith, the submitters were entitled to rely upon in continuing with the appeal.
  3. Even if it was made clear to Mr Friend that the purpose of avoiding the establishment of a precedent lacked merit, it was difficult to see that it could be regarded as improper to proceed with the appeal after the point he became aware of this.
  4. In the absence of any evidence, the Court was not persuaded that Mr Friend continued to participate in the proceedings for an improper purpose as a result of his involvement in the legal practice representing the appellants.
  5. The evidence of the submitters’ town planning expert was not found to be perverse, nor was he found to lack objectivity or to be a zealot.  The fact that his evidence was not preferred did not render Mr Friend’s prosecution of the appeal as unreasonable or improper.
  6. It could not be said, on either the traffic issue, the heritage issue or the temporary local planning instrument issue, that the submitters had no real prospects of success.
  7. The argument that there was an absence of any public interest element to the litigation had been undermined by an earlier finding of the Court which led to an Amended Notice of Appeal.
  8. Given the advice that the appellants had from their town planning expert, it could not be said that they acted unreasonably in not accepting offers to settle.
  9. It would have been prudent to advise the parties of the submitters’ town planning expert’s relationship with an adverse submitter.  That was a long way from establishing impropriety on the part of Mr Friend or the Mannings or any unreasonableness on their part.
  10. The application should be dismissed.

31/14 QUEENSLAND HERITAGE COUNCIL V THE CORPORATION OF THE SISTERS OF MERCY OF THE DIOCESE OF TOWNSVILLE [2014] QCA 165

McMurdo P, Gotterson JA and Douglas J - 22 July 2014

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Environment and planning – heritage conservation – judicial review of heritage decisions – generally – where the Queensland Heritage Council entered a convent into the Heritage Register – where the convent was owned by the respondent, the Sisters of Mercy – where the respondent appealed to the Planning and Environment Court from the Council’s decision to enter the convent in the Register – where the grounds available in that appeal were contested – where the Sisters of Mercy contended that the physical condition and structural integrity of the convent could form a ground of appeal in the Planning and Environment Court – where the Council contended that the appeal must be limited to the cultural heritage criteria as set out in s. 35(1) of the Queensland Heritage Act 1992 (Qld) – where, under the Sustainable Planning Act 2009 (Qld), an appeal was by way of hearing anew – whether the powers of the Planning and Environment Court extended to other matters if at least one of the grounds of appeal related to the cultural heritage criteria was made out

Appeal and new trial – appeal – general principles – right of appeal – when appeal lies – from interlocutory decisions – leave to appeal – whether the right of appeal to the Court of Appeal in s. 498 of the Sustainable Planning Act 2009 (Qld) applied

Facts:  This proceeding involved the St Patrick’s Convent in Townsville.  The convent was built in 1873 and was the oldest known surviving convent in Queensland.

On 3 February 2012, the applicant entered the convent into the Heritage Register on the basis that it satisfied the cultural heritage criteria set out in s. 35(1)(a), (d) and (h) of the Queensland Heritage Act 1992 (QHA), namely that it:

  1. was important in determining the evolution or pattern of Queensland’s history;
  2. was important in demonstrating the principal characteristics of a particular class of cultural places; and
  3. had a special association with the life or work of a particular person, group or organisation of importance in Queensland’s history.

Section 51(3) of the QHA permitted the Council, in making its decision, to have regard to “whether the condition or structural integrity of the place may prevent its cultural heritage significance being preserved”.

The Sisters of Mercy challenged the decision to list the convent by appealing to the Planning and Environment Court.

There was a dispute between the parties as to the factual issues that could be canvassed on that appeal.  The Sisters of Mercy argued they should be entitled to include, as grounds of appeal, the matters referred to in s. 51(3) of the QHA, namely whether it was likely that the convent would need to be removed and replaced and whether its physical condition and structural integrity may prevent its cultural heritage significance from being preserved. 

The Sisters of Mercy also sought to rely on the Sustainable Planning Act 2009 (SPA) in arguing that the appeal was a “hearing anew” and that if one of the grounds of appeal were made out, the Court should be entitled, in making a new decision in place of the Council’s, to consider the issues referred to in s. 51(3) of the QHA.

The Council argued that s. 162(1) expressly limited the possible grounds of appeal against its decision as to whether the convent satisfied the criteria stated in s. 35(1) of the QHA.  Section 162(1) stated that an appeal “may only be made on the ground that the place the subject of the appeal does or does not satisfy the cultural heritage criteria”.  The Council also argued that s. 162(1) confined the powers of the Court.

The primary judge had decided the issue in favour of the Sisters of Mercy.

On appeal, the Sisters of Mercy argued as a preliminary issue that the QHA did not provide an avenue of appeal to the Court of Appeal.  The Council argued that an appeal was possible under the SPA.

Decision:  The Court held (Douglas J and Gotterson JA concurring as to the orders made, McMurdo P dissenting in part):

  1. The conclusion that the SPA permitted the Council to appeal with the leave of the Court was compelling.
  2. When approaching the issue of the proper resolution of the potential conflict between two statutes, looking at the provisions as a whole and seeking to give them harmonious goals led to the conclusion that a ground of appeal asserting the place the subject of the appeal did not satisfy the cultural heritage criteria must be made out in order for it to be open to the Planning and Environment Court to exercise any powers under the SPA.
  3. If such a ground of appeal was made out, it was then appropriate to permit the Court, in exercising its powers, to hear the matter anew and, in doing so, to examine the issues which the Council itself had to examine under s. 51(3) of the QHA, namely whether the physical condition or structural integrity of the place may prevent its cultural heritage significance from being preserved.
  4. The success of a ground of appeal may throw quite a different light on the particular issues related to the physical condition or structural integrity of the place justifying the Council, were it considering the matter anew, in reaching a different decision.  If it was the case that error could be shown in the Council’s assessment of the cultural heritage criteria relevant to the place then that was also likely to throw doubt on the decision generally, justifying a reconsideration of the issues.
  5. It would be wrong to preclude a litigant from arguing that the Court should make a decision replacing the decision set aside without reference to all the issues actually considered by the Council itself.  The better view was that a broad view should be given to those grants of power to permit such issues related to physical condition or structural integrity of the place to be litigated if one of the statutory grounds of appeal was made out.
  6. It was appropriate that the issue whether a ground of appeal under s. 162(1) of the QHA had been established should be determined in the first instance to save the costs associated with the potentially unnecessary litigation of the issues relevant to s. 51 of the QHA.
  7. Leave should be granted and the appeal allowed.

32/14 R F THOMPSON (QLD) PTY LTD V NOOSA SHIRE COUNCIL [2014] QPEC 17

Robin QC DCJ - 24 April 2014

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Planning and environment – appeal against respondent Council’s refusal of compensation for injurious affection asserted by coming into force of a new strategic plan – preferred dominant land use (PDLU) mapping and descriptions of designations changed – open space PDLU designation (with wording allegedly more restrictive of development) significantly expanded to overlie more land zoned Residential High Density – former Urban Area PDLU also reduced where it overlay Future Urban zoning and designated Detached Housing for future – zoning and designated Detached Housing for future – zonings all unchanged – symbol identifying site for potential tourist development removed – whether site’s development potential, consequently value, was restricted to a similar extent by the original strategic plan and the continuing planning scheme given provisions in them protective of the environment, local and visual amenity, etc and limiting intensity of development – relevance of Council approval 9 years before of rezoning (not subsequently endorsed by the Governor-in-Council) which would have opened the way for intensive development of the whole site – whether council bound by intimations that a development approve prior to original strategic plan coming into effect complied with its objectives - relevance of a more contemporary approval for the adjoining property, which shared an environmentally sensitive wetland – relevance of subsequent Council assessment of various development applications over the site by reference to the new strategic plan– flora and fauna, geotechnical, hydraulic, traffic, visual amenity, economic, architectural, town planning and valuation issues – changing legislative regimes - Government, community and Court attitudes to environmental issues 

Facts:  This was an appeal against the Noosa Shire Council’s refusal of an application for compensation under s.3.5 of the Local Government (Planning and Environment) Act 1990 (PEA).  The appeal was commenced in 2000.

The subject site had an area of 37 hectares and was centrally located in Noosa Heads.  At the east of the site there were two areas of high dunes separated by a low-lying corridor to the low, flat remainder of the site which fronted Weyba Creek.  The northern dunal area was referred to as Area A, the southern as Area B.  The flat area was referred to as the sedgeland.

The claim was based on the coming into force on 5 September 1997 of a new Strategic Plan which replaced the 1988 Strategic Plan, and changed the preferred dominant land use (PDLU) designations of the site.

The 1988 Strategic Plan had included the water frontage and western half of the site as being located within the “Public and Private Open Space” PDLU, with the remainder being located within the “Urban Area” PDLU.
Under the 1997 Strategic Plan, approximately 4 hectares of the site was within the “Semi-Detached and Attached Residential” PDLU, approximately 8 hectares were within the “Detached Housing” PDLU and the remainder was within the “Open Space – Conservation and Waterway Protection” PDLU.

Under s.3.5(1) of the PEA, where a person’s interest in land was injuriously affected by the coming into force of a provision contained in a planning scheme (or of a new prohibition or restriction) compensation was payable by the local government.

Section 3.5(8)(a) of the PEA stated:

the amount of compensation is (subject to paragraphs (b), (c) and (d)) to be an amount equal to the difference between the market value of the interest immediately after the time of the coming into operation of the provision of the planning scheme by virtue of the operation hereof the claim for compensation arose and what would have been the market value of that interest if the provision had not come into operation”.

The Court was required to determine whether the site was “injuriously” affected in the sense of a reduction in value by the coming into effect of the 1997 Strategic Plan.  That turned on what a hypothetical prudent purchaser would pay for the site on an open market immediately before and immediately after the coming into effect of the 1997 Strategic Plan.

The Appellant argued that:

  1. the 1997 Strategic Plan materially changed the pro-development line taken in the 1988 Strategic Plan;
  2. Council had approved a rezoning for a large-scale development on the site in 1988 on the basis that it was consistent with the objectives of the 1988 Strategic Plan (although that rezoning was never subsequently approved or gazetted); and
  3. there was a contemporary approval of similar development on a site immediately adjacent approved in 1997.

Evidence was also given about subsequent development applications over the site, after the commencement of the 1997 Strategic Plan, in particular:

  1. an application made in December 1994, for development similar to that which was the subject of the 1988 approval.  Council had failed to decide that proposal and a deemed refusal appeal had resulted, which was resolved by a consent Order approving a modified proposal; and
  2. an application made in September 2001 and ultimately refused.  The recommendation of refusal was based significantly, but not solely, on the 1997 Strategic Plan.

The Court heard from experts in numerous fields (including geotechnical, flooding, flora and fauna, acid sulphate soils, stormwater and water quality, visual amenity, traffic, engineering, economics, architecture and valuation) who were called upon to indicate what advice they would have given to a potential purchaser of the site in relation to its realistic development potential.

The Appellant’s valuer assessed the value before the relevant date as $37.73 million, compared with $14.45 million immediately after the relevant date.  Council’s valuer did not put dollar amounts on values of the site on the basis that the before and after values would be the same because a properly advised hypothetical prudent purchaser would assess changes in strategic planning as not having any impact on a site’s development potential.

The parties argued about the implications of the increase in “environmental awareness” leading up to the relevant date at all levels of government and in the community.  Council argued that the phenomenon would have meant that a hypothetical prudent purchaser would not rely on historical approvals as an indication of what could currently be approved.  The Appellant argued that a hypothetical purchaser would have thought that if Council had pursued a “green agenda” under the 1988 Strategic Plan it would have lost in an appeal, while under the 1997 Strategic Plan it would have won.

Council also relied upon the decision in Sparke v Noosa Shire Council [2001] 1 Qd R 344 as a basis for rejection of the Appellant’s claim.  It argued that rezoning of Area B would have been necessary in the Appellant’s “before” case and that therefore the Appellant could not show a legal right to use the land for the purposes which it said were prohibited or restricted from the relevant date.

The onus was on Council to show that compensation was not payable.

Decision:  The Court held, in dismissing the appeal:

  1. The 1988 Strategic Plan would have stood in the way of the Appellant’s “before” cases as effectively as its successor. 
  2. The Appellant failed to show that a hypothetical prudent purchaser properly advised would have held any reasonable expectation of rezonings in the “before” case.  Further, reasonable prospects existed for rezoning (or development approvals necessary to achieve the before case) after the relevant date, which could not practically or convincingly be shown to fall short of those that could be expected before.
  3. The case law did not support the Appellant’s argument about increasing environmental awareness. 
  4. The Appellant was not entitled to rely on the 1988 approval.  Council’s resolution on that rezoning application did not affect rights in the way a town planning permit did.  Statements by Council that the proposal was in accordance with the 1988 strategic plan did not create an estoppel or in any way bind Council.  Council was free to contend that whatever may have been said or done in regard to that application was wrong.
  5. Only an irrational purchaser would have taken any heart from the Council’s statements and actions in respect of the 1988 approval by September 1997.  To the extent that there may have been some value in the 1988 approval, the potential purchaser would not pay for it. 
  6. There were a number of matters that would have given a prudent purchaser pause before placing reliance on the 1997 approval over the neighbouring site.
  7. The coming into force of the 1997 Strategic Plan appeared not to have had the overnight effect of restricting development possibilities.
  8. It had to be accepted that there were geotechnical unknowns which had the potential to significantly affect the feasibility of development of the site.  While all acknowledged constraints could be overcome, the cost was unknown and could be considerable.
  9. Flooding issues hardly loomed large but pointed out problems a developer of the site concerned to achieve maximum development might face, the engineering and financial implications of which were unknown.
  10. In relation to ecology, enough had emerged by September 1997 in relation to the site to send a clear warning that serious environmental concerns were held regarding development proposed on it. 
  11. Inconsistency with the attitude taken to development to the immediate south did not matter.  It would have been extraordinarily rash to count on what happened there as in any way indicating what might happen on the subject site.
  12. Circumstances pertaining by September 1997 dictated the cautious advice that the site presented with serious ecological issues that could limit development, further assessment of the site was needed to identify its values and other expert advice was required.
  13. There were risks in relation to acid sulphate soils which could not be calculated accurately and that would have placed any potential purchaser in a state of huge uncertainty.
  14. In relation to stormwater and water quality, the evidence of Council’s experts was accepted as to the extent that caution would have characterised advice given to a potential purchaser.
  15. The visual amenity evidence was largely neutral.  There was no significant change in the planning arrangements on the relevant date.
  16. In relation to traffic, it remained entirely uncertain as to what was known or could have been ascertained at the relevant date.
  17. In relation to economic need, the hypothetical prudent purchaser should be treated as being in receipt of the cautious advice of the Council’s expert, whether or not less cautious advice was also available.
  18. Council’s Sparke point succeeded.  In other contexts it might be a concern that a landowner was left by changes in strategic planning with land reduced to a fraction of its value otherwise than, by recourse had to Sparke.  However, ignoring any effect of Sparke, the Council had established that at the relevant date there occurred no diminution in the development potential of the site, and therefore no diminution of market value.
  19. The Appellant did not show that its interest was “injuriously affected” which was essential to invoke s.3.5 of the PEA.  The appeal should be dismissed.