[2013] QPEC 67
PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 4876 of 2011

SUGARBAG ROAD PTY LTD				Appellant

and

SUNSHINE COAST REGIONAL COUNCIL		Respondent

BRISBANE

10.06 AM, FRIDAY, 20 SEPTEMBER 2013

JUDGMENT

CATCHWORDS

Application for order to require Council to seal a plan of reconfiguration on the basis of asbestos remediation measures recently agreed on by the parties experts - adjourned to enable Council to decide at a full council meeting potential future liabilities a source of concern

HIS HONOUR:   In both matters, I make an order adjourning the proceeding to the 25th of September 2013 for determination what – if any steps should be taken or directions given in advance of the Council meeting on the 14th of November 2013.  

There is, before the court a mention today of appeal 4876 of 2011, against the Council’s refusal to vary an approved reconfiguration.  There’s also, and more urgently, originating application 421 of 2013, in which the developer seeks an order requiring the Council to seal a plan of reconfiguration, notwithstanding the Council’s misgivings because of the state of the site, in particular asbestos contamination which has to be dealt with.  Experts in that field and also the geotechnical field engaged by the developer on the one hand and the Council on the other were engaged to consider issues and reported late last month.  The court understands they agreed on measures that might be taken to remedy the situation.  

The Council represented by Ms Kefford, seeks an adjournment of the originating application for two months to enable the full Council to consider the situation at the scheduled meeting on the 14th of November.  There is a meeting in the interim next month when it seems and the court accepts, that time is not available.  I’m sympathetic to the Council’s situation.  That it may have selected experts who reported as indicated cannot necessarily be relied on to save the Council from liability by sealing the plan should that lead to any complaints against the Council in the future.  Any rights over the Council might have against experts might turn out to be hollow.  I don’t think there’s any reason why the Council should be bound to accept and, in consequence, expose itself to potential liabilities, views of experts simply because it engaged them.  I think it’s appropriate that the full Council consider these issues.  

Mr Storie for the developer, understandably, is anxious that his client be in a position to advance matters and accordingly, resists the adjournment sought by Ms Kefford as inappropriately long, although, in the circumstances, there seems to me no real alternative.  He’s told the court that he wants to seek instructions from his client, having been surprised by Ms Kefford’s late foreshadowing of the duration of the adjournment sought.  As she says, the developer could use the time to get things moving by implementing the procedures recommended by the experts.  Mr Storie expects his client might be averse to taking the risk of embarking on expensive works if there’s no guarantee of ultimate success.  

No doubt he’s also hoping that with further instruction from his client, he may be in a position to work something out with the Council.  Nothing is really lost in the circumstances by the court ordering another mention next week to accommodate Mr Storie.  I’ve attempted to make it clear that in indulging him in that way, I’m firmly of the view that in this situation, the Council, because of the importance of the issues involved, should not be forced into anything before the meeting has occurred and the Council view’s are worked out.  I’m not being critical of Ms Kefford to add her to the long list of practitioners in this jurisdiction who’ve been unable to answer for me the intriguing question whether local authorities are bound by decisions which they do not necessarily agree with or support, made on their behalf by the court.  So, adjourned to the 25th of September 2013.
MS KEFFORD:   Thank you.

HIS HONOUR:   Thank you both.

MR STORIE:   Thank you, your Honour.

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