Barns v Maroochydore Shire Council

[2005] QPEC 028

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2434 of 1998

JAMES THOMAS BARNS & LYNETTE JOY BARNS	Appellants
and
MAROOCHYDORE SHIRE COUNCIL	Respondent

BRISBANE

..DATE 15/04/2005

ORDER

CATCHWORDS: Application of Uniform Civil Procedure Rules in Planning and Environment Court - rule 389 - advisability of explaining delay in proceedings - point not taken by Respondent
HIS HONOUR: I make an order in terms of the initialled draft.

This is a 1998 matter in which compensation is sought by land owners in respect of the adverse effect from their point of view of changes in the planning regime. As in some other proceedings in the Court of this nature, there has been on the face of things considerable delay.

There are sensible reasons for that. Councils and land owners involved have thought it prudent to await the clarification of difficult issues that arise by decisions of higher courts. See now Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33. Suffice it to say the situation still leaves considerable room for argument. It is desired to get this matter advancing relatively quickly now.

There are unusual timetabling aspects in that the draft order deliberately contemplates certain steps being taken after the callover on 18th July 2005 when it is envisaged that hearing dates will be set. That is consistent with the practice of this Court which perhaps to an unusual degree seeks to make Court time available to suit the diaries of its practitioners so that those who are familiar with the issues will be available to deal with them before the Court.

I have made a point of mentioning the delay because I think it is salutary that the clients of the Court and practitioners who are active in it understand that delay may be visited with important consequences, given the application of the UCPR in this Court where its own rules are silent, in particular rule 389.

Judge Wilson has made it clear in a judgment handed down today that the UCPR apply in this regard. See Jimbelung Pty Ltd v Beaudesert Shire Council [2005] QPEC 025. In footnote 7 his Honour lists many matters in which this Court has applied the UCPR. In the former Local Government Court the relevant topic was the subject of rules but that is no longer the case. In his Honour's matter the point was taken by a party, so the Court was constrained to deal with it. It is not yet known what the outcome will be as a further hearing at which the allegedly dilatory appellant may present evidence has still to occur. Mr Litster for the Maroochydore Shire Council has made it clear that the Council does not take any similar point and I wish to make it clear that nor does the Court today.

I think that people ought to have reasonable notice where the practice of the Court may be changing as perhaps it is in this respect. The time may be upon us when delay ought to be explained.

Order as per draft.

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CaseChat Overview and Summary

The Planning and Environment Court, presided over by Judge Robin QC, addressed the case of Barns v Maroochydore Shire Council, an appeal from 1998 concerning compensation sought by the appellants, James Thomas Barns and Lynette Joy Barns, for what they perceive as the adverse effects of changes in the planning regime. The Maroochydore Shire Council acted as the respondent in this matter. The case revolves around the application of the Uniform Civil Procedure Rules (UCPR) in the Planning and Environment Court, particularly rule 389, which pertains to the advisability of explaining delays in proceedings. This point was not contested by the respondent in this case.

The central legal issue the court needed to resolve was whether the UCPR should apply in the Court’s consideration of delays in proceedings, given that the Court’s own rules do not explicitly address this matter. The case references Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33, highlighting the Court’s wait for higher court decisions to clarify complex issues. The court also referenced a recent judgment by Judge Wilson, in Jimbelung Pty Ltd v Beaudesert Shire Council [2005] QPEC 025, which emphasized the applicability of the UCPR in this context. The court acknowledged the delay in proceedings and stressed the importance of practitioners and clients understanding that delays may have significant consequences under rule 389.

In its reasoning, the court noted the unusual delay in this case, which had sensible reasons due to the need for higher court clarifications on complex issues. The court highlighted the practical approach of setting aside time to suit the practitioners' schedules, ensuring that those familiar with the case would be available. The court made a point of mentioning the delay to underscore the potential consequences of such delays under the UCPR, although the Council did not contest this point. The court did not impose any consequences for the delay in this instance but emphasized the need for reasonable notice if the practice of the Court changes in this respect. The order was made in line with the initialled draft, without further comment on the delay.

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