Court orders residents to file statement of facts in appeal against retirement village, townhouse development

The Planning and Environment Court has asked for residents concerned about a development at the end of their quiet street to file a statement of facts.

The Planning and Environment Court has ordered that a group of concerned residents file a statement of facts in support of their appeal against a retirement home and townhouse development in Middle Ridge.

Barry Bernoth and Oak Tree Group received approval from the Toowoomba Regional Council in March for a 51-unit retirement facility and a 43-unit townhouse development on land next to Gabbinbar Homestead in Middle Ridge.

The residents, through TJT Bloodstock Pty Ltd – acting for the Large Street Trust – lodged an appeal against the approval of the development in mid-November.

At a declarations hearing on Friday TJT Bloodstock Pty Ltd, acting for the Large Street Trust, was ordered to file and serve a statement of facts relied upon in their appeal on or before January 15.

In the lead-up to the hearing, solicitors for Oak Tree Group, Toowoomba Regional Council, and Barry Bernoth all expressed concerns about the appeal.

Plans for the Oak Tree Group and Barry Bernoth's retirement and residential development in Middle Ridge.

MinterEllison, acting for Oak Tree Group, in a letter to the Large Street Trust’s solicitor claimed the Large Street Trust was “seeking to agitate matters of merit under the guise of legal error or jurisdictional error”.

“Our client wishes to give your client early and fair notice of the fundamental problems with the originating application and the case that is sought to be advanced. This is to give your client every reasonable opportunity to discontinue the proceedings as soon as possible in order to avoid wasted costs.”

MinterEllison attached in their correspondence a proposed draft order requiring the Large Street Trust to “file a statement of facts, matters and contentions”.

“We do not consider that it is appropriate or reasonable to take any further steps in the proceedings until the respondents have had an opportunity to review and consider whether your client’s Statement of Facts, Matters and Contentions identifies an arguable case.”

Holding Redlich, acting for Toowoomba Regional Council, said its client maintained “it would appear the application has been filed and the proceedings have been commenced in an attempt to agitate merits issues associated with traffic and access of a code assessable development proposal”.

“The conduct of your client in filing the application is the sort of conduct which the Courts have identified as being the conduct of proceedings for an improper purpose.

“We invite your client to discontinue the proceedings immediately and should they not be discontinued our client supports the draft orders contended for by (Oak Tree Group).”

Documents lodged earlier with the P&E Court in Maroochydoore show the trust is appealing against the development, seeking a declaration the council’s approval is “invalid, and of no legal effect”.

Access to the development will be through Large St – the source of opposition to the development.

The trust is seeking the decision notice be set aside and the development application remitted to the council “to reconsider according to law”.

The appeal argues that Oak Tree Group and Mr Bernoth’s application does not comply with the Transport, Access and Park Code in that Large St is a cul-de-sac, which provides access for up to 12 dwellings, and not a “local access street”, which could provide access for up to 175 dwellings.

In support of its application, the trust is also arguing the development will “increase the safety risk and potential for crashes” at the Large St / Rowbotham St intersection due to increased traffic volumes, sight distance and lack of appropriate turning facilities.