In brief

The case of Goldicott House Pty Ltd v Brisbane City Council & Ors [2019] QPEC 25 concerned an interlocutory application to the Planning and Environment Court (Court) in respect of an appeal against the decision of the Brisbane City Council (Council) to refuse a development application for a development permit for building work to facilitate the demolition of a State and local heritage place, and a development permit for a material change of use and for reconfiguring a lot. The interlocutory application was brought by the Council seeking orders to broaden the issues advanced by the Council in the appeal.

The Court found that the main issue in contention was whether the Court ought to exercise its discretion to allow the application to broaden the issues advanced by the Council insofar as it related to the demolition of the additional weatherboard building that improved the land the subject of the appeal. 

The Court held that the application should be allowed on the basis that the interests of justice were best served by allowing the issues in the appeal to be enlarged. The Court noted, however, that such orders would not be made as a matter of course and those who practice in the jurisdiction should be mindful of the need to promptly determine whether there is any tension between the scope of the expert reports and the issues in dispute as identified in the orders made by the Court. 

Background

The land the subject of the appeal is located at 65 Grove Crescent, Toowong. The land is improved by a substantial residence known as Goldicott House (Goldicott House) and a small weatherboard building which is referred to as the "music room" (Music Room). 

On 15 February 2018, the registered landowner (Landowner) lodged a development application with the Council for a development permit for building work to demolish the Music Room, a development permit for a material change of use to use the Goldicott House as a dwelling house, and a development permit to reconfigure a lot to create two separate lots.

The Council refused the application and the Landowner subsequently appealed the decision. 

In the course of the proceeding, the Court made an order which limited the issues in the appeal to the Council's reasons for refusal together with the additional issues identified by the co-respondents. Relevantly, the Council's reasons for refusal did not expressly make reference to the Music Room at the time the order was made. 

Following the delivery of the Historian and Heritage Joint Expert Reports (Joint Expert Reports), it was discovered that the Joint Expert Reports identified new and significant information about the Music Room in that, amongst other things, the Music Room demonstrated a rare, uncommon or endangered aspect of Queensland's cultural heritage. 

The Council subsequently sought to broaden the issues to argue that the demolition of the Music Room would offend the relevant provisions within the Council's reasons for refusal and that the proposed development failed to conserve and protect, and would damage or diminish the cultural heritage significance of the heritage place contrary to the provisions of the strategic framework of the Council's Planning Scheme.

Application to broaden issues in dispute

The Council applied to the Court for orders to broaden the issues in dispute. The Council submitted that rule 20(5) of the Planning and Environment Court Rules 2018 permitted the Court to make an order identifying the issues in dispute. 

The Council further submitted that the additional issue which the Council sought to ventilate in the appeal raised matters of public importance and interest. This was on the basis that the number of submissions made during the public notification period and the number of co-respondents by election was indicative of the public importance of the issue. The Council also contended that the Department of State Development, Manufacturing, Infrastructure and Planning did not have the benefit of considering the new and significant information regarding the Music Room, and that it was required to provide its position on the new information in its capacity as a referral agency for the development application. 

The Court agreed with the Council and found that the issues in dispute should be enlarged to the extent that they included the additional ground relating to the demolition of the Music Room as an issue in dispute.

To make its finding, the Court relied on the affidavit filed on behalf of the Council to consider the context in which the application was made and why it had been made at a late stage. The Court noted that the affidavit deposed that the appeal would proceed on the basis of the defined issues under the earlier order of the Court, as well as the issues elaborated on by the experts. However, the Court held that this was a misunderstanding of the role and effect of a joint expert report and that joint expert reports do not serve automatically to either confine or extend the issues in an appeal.  

The Court noted that the application served as an illustration of the difficulties which can be encountered when experts participating in joint reports go beyond the issues as defined. The Court found that if a situation were to arise where a joint expert report goes beyond the issues in dispute, the solicitors for the parties should act promptly to either raise their objections to the reports or to change the issues so as to accommodate the further matters raised by the experts. 

Despite the finding, the Court held that the subject matter of the application concerned the proposed demolition of the Music Room, which was a matter of heritage significance. As such, the Court found that it was an issue which related to matters of public interest and the interests of justice were best served by allowing the issues to be enlarged. 

Conclusion

The Court held that the application should be allowed in the interest of justice. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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