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[2026] QPEC 11
General information, not legal advice.
Planning and Environment Court of Queensland
2026-03-25
Original judgment source is linked above.
City Legal - Brisbane City Council for the Respondent
HopgoodGanim Lawyers for the First Co-respondent by Election
Corrs Chambers Westgarth for the Second Co-respondent by Election
[1] On 14 October 2025, Rivermakers Pty Ltd filed an application in pending proceeding seeking an order that this appeal be stayed or, alternatively, adjourned for a period of 12 months. The application is contested by all other parties in the appeal.
[2] The grounds relied on to justify the relief relate to a relatively recent decision of the Second Co-respondent by Election, the Chief Executive, Department of Housing, Local Government, Planning and Public Works ("the Chief Executive"). The Chief Executive elected to commence two criminal proceedings in relation to the lawfulness of the existing use of the land the subject of this appeal.
[3] Before turning to the issues that inform the exercise of the discretion, it assists to firstly understand the nature of the appeal, including the issues in dispute, and the charges in the criminal proceedings.
[4] Rivermakers Pty Ltd's appeal is an applicant appeal against Brisbane City Council's ("the Council") decision to refuse a development application and variation request with respect to land at 500 Lytton Road and 82 and 90 Colmslie Road, Morningside ("the subject land"). To date, the Council maintains that the development application should be refused.
[5] Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group ("Australian Country Choice Group") has elected to join the appeal. It is the First Co-Respondent by Election.
[6] Australian Country Choice Group is a vertically-integrated beef business that operates through a number of companies. It has an abattoir and value add factory on a site of approximately 100 acres at 117 Colmslie Road in Cannon Hill, directly across from the subject land. Australian Country Choice Group contends that the development application should be refused.
[7] The Chief Executive is also a party to the appeal. It contends that the development application should be refused.
[8] Rivermakers Pty Ltd bears the onus in the appeal.
(a) a preliminary approval for a material change of use for a bar, education establishment, food and drink outlet, function facility, large format retail, market, office and shops; and
(b) a development permit for a material change of use to facilitate a bar.
[10] For convenience, I will refer to the development that is sought to be facilitated by the development application as the proposed development.
[11] The variation request seeks approval to vary the effects of Brisbane City Plan 2014 and a temporary local planning instrument for the Colmslie Road Industry Precinct.
[12] The subject land is divided into two precincts. The larger precinct is at the corner of Lytton Road and Colmslie Road. It is known as "the Depot". A smaller precinct ,known as "the Heritage Quarter", is located further north along Colmslie Road. It contains a State-listed heritage place.
[13] The Depot and the Heritage Quarter are separated by a developing industrial park. The industrial park does not form part of the development application.
[14] The parties contending for refusal have each filed documents identifying the basis on which they contend the development application should be refused. The issues raised are extensive. They include allegations about the lawfulness of the past and current uses on the subject land: see, for example, Court Document 72, First Co-Respondent by Election's Further Amended Reasons for Refusal, para 14.
[15] In addition, there are many allegations that raise the genuine prospect that evidence will be adduced about:
(a) the nature and extent of existing uses on the subject land;
(b) the existing impacts associated with such uses, including traffic and reverse amenity impacts; and
(c) the extent to which the existing impacts can legitimately form a baseline for measurement and assessment of impacts by reference to their lawfulness or otherwise: see, for example, allegations that the proposed development would result in the introduction of non-industrial traffic and the creation of reverse amenity impacts in Court Document 72, First Co-Respondent by Election's Further Amended Reasons for Refusal, para 3(a) and 8.
[16] There is also a genuine prospect that, to dispose of the appeal, factual findings will be made about such matters.
[17] The Chief Executive is entitled to be heard on every issue in the appeal, whether the issues are raised by it or others. The Chief Executive is taking an active role in the proceedings, including on issues that relate to the nature of the existing uses on the subject land.
[18] Despite that, in September 2025, Philip Martin Joyce, a public officer within the Department of State Development, Infrastructure and Planning, commenced two criminal proceedings in the Magistrates Court of Queensland. The proceedings were commenced by way of complaints under the Justices Act 1886 (Qld).
[19] It appears to be common ground that the officer commenced the offence proceedings in a representative capacity, as permitted under s 175 of the Planning Act 2016. Relevantly, the submissions for the Chief Executive say:
"The Complaints are advanced by the same State Government department providing instructions on behalf of the Second Respondent in this proceeding. Common solicitors are providing legal assistance to the department for both the Complaints and this appeal. Counsel too are the same."
[20] There are two relevant criminal proceedings that have been filed in the Magistrates Court.
[21] One proceeding names the owner of the subject land, Dunhill Properties Pty Ltd, as defendant. It contains 11 charges of unlawful use of premises pursuant to s 165 of the Planning Act 2016 (Qld). The charges allege eight unlawful uses in the Heritage Quarter precinct and three unlawful uses in the Depot precinct. The charges allege the unlawful uses occurred between 11 April 2025 and 19 September 2025, a period during which this appeal was on foot.
[22] Each charge alleges that Dunhill Properties Pty Ltd is a principal offender under s 7(1)(b) of the Criminal Code 1899 (Qld), and further or alternatively under s 7(1)(c), on the basis that it permitted the alleged unlawful use of the subject land.
[23] In the criminal proceeding against Dunhill Properties Pty Ltd, the complainant must prove:
(a) the use that is alleged to have occurred on the premises during the charged period;
(b) that the use was unlawful during the period charged; and
(c) that Dunhill Properties Pty Ltd is criminally responsible for the carrying out of the unlawful use under s 7(1)(b) or (c) of the Criminal Code as particularised.
[24] The other criminal proceeding names the sole director of Duhill Properties Pty Ltd, Mr Balfour Irvine, as a defendant. Mr Irvine is charged with 11 criminal offences under s 227 of the Planning Act 2016.
[25] Section 227 of the Planning Act 2016 states:
"227 Executive officer must ensure corporation complies with Act
(1) An executive officer of a corporation commits an offence if -
(a) the corporation commits an offence against an executive liability provision; and
(b) the officer did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence.
Maximum penalty - the penalty for a contravention of the executive liability provisions by an individual.
(2) When deciding whether things done or omitted to be done by the executive officer constitute reasonable steps for subsection (1)(b), a court must consider -
(a) whether the officer knew, or ought reasonably to have known, of the corporation's conduct constituting the offence against the executive liability provision; and
(b) whether the officer was in a position to influence the corporation's conduct in relation to the offence against the executive liability provision; and
(c) any other matter that the court considers relevant.
(3) The executive officer may be proceeded against for, and convicted of, an offence against subsection (1) whether or not the corporation has been proceeded against for, or convicted of, the offence against the executive liability provision.
(a) the corporation's liability for the offence against the executive liability provision; or
(b) the liability, under the Criminal Code, chapter 2, of any person for the offence, whether or not the person is an executive officer of the corporation.
(a) section 162; or
(b) section 163; or
(c) section 164; or
(d) section 165; or
(e) section 166(7); or
(f) section 168(5); or
(g) section 172; or
(h) section 176(5); or
[26] There is a close connection between Rivermakers Pty Ltd, Dunhill Properties Pty Ltd and Mr Irvine. Mr Irvine is:
(a) sole director of Dunhill Properties Pty Ltd;
(b) director of Silveressence Pty Ltd, which is the sole shareholder of Rivermakers Pty Ltd;
(c) involved in the management and control of Rivermakers Pty Ltd through the BMI Group, of which Rivermakers Pty Ltd and Dunhill Properties Pty Ltd are both a part;
(d) related to the directors of Rivermakers Pty Ltd, who are his son and wife; and
(e) one of the people who gives instructions on behalf of Rivermakers Pty Ltd in this appeal.
[27] As I have mentioned, the complaint alleges that Dunhill Properties Pty Ltd is criminally liable as a principal offender because it "permitted" businesses to use the subject land for the purposes particularised in the complaints.
[28] The complaint against Mr Irvine alleges that he is criminally liable pursuant to s 227(1) of the Planning Act 2016 as a principal offender pursuant to s 7(1)(a) of the Criminal Code. The basis of the complaint is that Mr Irvine did not take all reasonable steps to ensure that Dunhill Properties Pty Ltd did not engage in the conduct that is alleged in the other criminal proceeding.
[29] As such, the criminal liability of Mr Irvine is founded on proof of the offences in the complaint against Dunhill Properties Pty Ltd.
[30] The particulars in the complaint confine the basis upon which criminal liability may be established. They are properly considered part of the charge, and the prosecutor is bound by them.
[31] The forms of evidence that may be relied on by the prosecution in the Magistrates Court is informed by s 228 of the Planning Act 2016. That section facilitates proof about a person's state of mind in a proceeding for an offence. It says:
(1) If it is relevant to prove, in a proceeding for an offence against this Act, a person's state of mind about particular conduct, it is enough to show -
(a) the person's representative was engaged in the conduct for the person within the scope of the representative's actual or apparent authority; and
(b) the representative had the state of mind.
(2) The person is taken to have engaged in the representative's conduct, unless the person proves the person could not have prevented the conduct by exercising reasonable diligence.
(a) of a corporation - an executive officer, employee or agent of the corporation; or
(b) of an individual - an employee or agent of the individual.
state of mind, of a person, includes the person's -
(a) knowledge, intention, opinion, belief or purpose; and
(b) reasons for the intention, opinion, belief or purpose."
[32] With those uncontentious issues in mind, I turn to address the submissions about the issues in this interlocutory dispute.
What is the issue for me to determine in this interlocutory application?
[33] During the hearing of the application in pending proceeding, I was greatly assisted by oral submissions made by Mr Holt KC, Mr Greggery KC and Mr Hunter KC on behalf of Rivermakers Pty Ltd, the Council and Australian Country Choice Group respectively. In their oral submissions, they each appropriately refined the issues requiring consideration having regard to the evolution of the evidence and oral argument. Those Counsel each also provided cogent explanations, in response to probing questions by me, about the relevance of certain considerations, the foundation for their submissions, and their reasoning about the weight to be afforded to various considerations. Each conscientiously assisted me to the extent they could, and appropriately indicated when certain matters were more appropriately addressed by the Chief Executive.
[34] It is apparent from oral submissions that Rivermakers Pty Ltd, the Council and Australian Country Choice Group collectively accept that:
(a) the principles in the authorities with respect to the grant of a stay of proceedings are not readily applied to these proceedings given the distinctive nature of merits appeals in this Court;
(b) the real issue that requires determination is whether the preparation for, and hearing of, this appeal should be adjourned, which is the alternative relief sought by Rivermakers Pty Ltd;[1]
(c) pursuant to s 14 of the Planning and Environment Court Act 2016, the Court has power to make an order adjourning this proceeding;
(d) the Court has a broad discretion when determining whether to make such an order;
(e) if I am minded to adjourn the preparation for, and hearing of, this appeal, it should be for a period of no more than 12 months; and
(f) there may be benefit in listing the matter for an interim review so that the Chief Executive can inform the Court about the progress of the criminal proceedings.
[35] The concessions by those parties in this regard are sensible. They recognise the broad discretion afforded the Court under s 14 of the Planning and Environment Court Act 2016, which states:
(1) The P&E Court may make an order or direction about the conduct of a P&E Court proceeding.
(2) The Chief Judge may make directions of general application about the P&E Court's procedures.
See, for example, section 22.
(3) In making an order or direction under this section, the interests of justice are paramount.
(4) An order or direction made under this section may be inconsistent with a provision of the rules."
[36] It was also uncontroversial between those parties that, in exercising the discretion, the Court must bear in mind s 10 of the Planning and Environment Court Act 2016. It states:
(1) In conducting P&E Court proceedings and applying the rules, the P&E Court must -
(a) facilitate the just and expeditious resolution of the issues; and
(b) avoid undue delay, expense and technicality.
(2) The parties to a P&E Court proceeding impliedly undertake to the court and each other to proceed in an expeditious way."
[37] I accept the submissions of those parties in that regard.
[38] There was also common ground between Rivermakers Pty Ltd, the Council and Australian Country Choice Group about the considerations that are relevant to the exercise of the Court's discretion. I address them in paragraphs [82] to [129] below. The real controversy relates to whether those considerations, when weighed in the balance, support an adjournment of the appeal.
[39] Ultimately, Rivermakers Pty Ltd bears the onus of persuading me that the adjournment should be granted. That said, before turning to address the considerations raised by Rivermakers Pty Ltd, the Council and Australian Country Choice Group, it is convenient to dispose of the submissions made on behalf of the Chief Executive.
Do the submissions for the Chief Executive present a persuasive hurdle to the relief sought by Rivermakers Pty Ltd?
[40] At the hearing of the application, the Chief Executive relied almost entirely on the Outline of Argument prepared by Mr Horton KC and Mr Wylie that was filed on 19 December 2025 ("the Chief Executive's Outline").
[41] According to the Chief Executive's Outline, the Chief Executive contends that Rivermaker Pty Ltd's application should be dismissed, and directions should be made to advance and determine this appeal. The Chief Executive's Outline advances three objective factors that the Chief Executive says warrant refusal of a stay of this appeal. It also advances four additional bases for dismissing the application for a stay.
[42] The written outline was supplemented by very brief oral submissions on behalf of the Chief Executive. It is convenient to address them first.
[43] In oral submissions, Mr Horton KC indicated that:
(a) disclosure for the criminal proceedings in the Magistrates' Court is not complete;
(b) the criminal proceedings were commenced because the Chief Executive considered them to be appropriate; and
(c) if the Court is inclined to make an order, the more appropriate course would be to adjourn for a period of less than 12 months based on case management principles.
[44] I accept these submissions. The balance of the Chief Executive's written and oral submissions do not present a persuasive hurdle to the relief sought by Rivermakers Pty Ltd. That is so for the following reasons.
[45] Other than the matters referred to in paragraph [43] above, the oral submissions were unhelpful. The content and tenor of Mr Horton KC's oral submissions made it clear to me that Mr Horton KC was not inclined to:
(a) assist me to understand or test the written and oral submissions that he and Mr Wylie were advancing on behalf of the Chief Executive;
(b) respond to submissions made by any of the other parties, including submissions that there were serious difficulties with the written submissions provided by the Chief Executive; or
(c) otherwise assist me about matters that the other parties had indicated were best addressed by the Chief Executive, such as with respect to my concern that a failure to adjourn this appeal presents a genuine risk that the Magistrates Court would be forced to permanently stay the criminal proceedings.
[46] In response to my requests for assistance, Mr Horton KC offered bare assertions and meaningless submissions. For example, Mr Horton KC said that he struggled to see how the question of the lawfulness of uses could feature as a major point in the appeal. He even went so far as to submit that it is unlikely to be necessary for the Court to consider that issue when determining this appeal. I indicated that I found the submission difficult to follow given the lawfulness of the uses the subject of the criminal proceedings are identified as a material consideration by the other parties. When I asked Mr Horton KC for assistance in that respect, he said "We're entitled to say that. We're entitled to have a position, and that's our position." This did not assist me to understand the submission.
[47] Mr Horton KC's responses reinforce my initial impression that the point is without merit.
[48] Having addressed the oral submissions, I turn to the Chief Executive's Outline.
[49] The Chief Executive's Outline does not advance any basis for refusal of the alternative relief, namely an adjournment. It focuses on the application for a stay. It that respect, it advances arguments about the lack of comparability between the scenario that arises in this case and that which usually pertains in the cases with respect to applications for a stay. This is evident from two of the three objective factors that the Chief Executive says warrant refusal of a stay of the proceeding.
[50] The first objective factor relied on by the Chief Executive is the fact that Rivermakers Pty Ltd is not the subject of any relevant criminal proceedings. The Chief Executive says that this answers the request for a stay and distinguishes many of the authorities for the stay of proceedings. This is because the authorities referred to by the parties involve a request for a stay by the same entity that is the subject of the criminal proceedings.
[51] The second objective factor relied on by the Chief Executive is that consideration of the authorities with respect to staying proceedings reveal that it is unusual for a moving party in a matter to seek an order staying its own proceeding.
[52] I accept these propositions. However, I do not accept that they are determinative of the application in pending proceeding for the following reasons.
[53] The two objective factors relied on by the Chief Executive do not present significant hurdles to be overcome by Rivermakers Pty Ltd. They only relate to the application for a stay, not the alternative relief.
[54] Further, and in any event, the authorities do not purport to identify every situation where a stay or adjournment will be appropriate.
[55] In this case, the unusual course adopted by Rivermakers Pty Ltd is informed by the distinctive character of merits appeals in this Court and the obligations that apply in this Court. It reflects a responsible approach given:
(a) absent an order from the Court, Rivermakers Pty Ltd would be expected to proceed in an expeditious way: s 10(2) of the Planning and Environment Court Act 2016; and
(b) were Rivermakers Pty Ltd to proceed expeditiously in this appeal without regard to the criminal proceedings, there is a prospect that it might sound in consequences that are contrary to the interests of justice, namely a permanent stay of the criminal proceedings.
[56] The third objective factor relied on by the Chief Executive is also advanced to resist a stay. Nevertheless, it is relevant to the discretion to grant an adjournment.
[57] The Chief Executive's third objective factor is that the entire purpose of the development application is to seek to regularise (or to permit future regularisation) of unlawful uses. The Chief Executive asserts that this necessarily implies a consistency between this appeal and the criminal proceedings. According to the Chief Executive, this appeal proceeds on a footing that accords with the basis of the complaints in the criminal proceedings.
[58] The Chief Executive's reliance on this factor is perplexing. It appears to run contrary to its position. It supports the grant of a stay or an adjournment, not its refusal. This is because it supports a finding that, were this appeal to proceed, there is a genuine risk of a permanent stay of the criminal proceedings given:
(a) Mr Irvine is giving instructions in this appeal; and
(b) the legal team for the Chief Executive in this appeal is the same as that retained in the criminal proceedings.
[59] Despite having an opportunity to clarify its position and address this risk in oral submissions, the Chief Executive elected to remain silent.
[60] That said, in oral submissions Mr Horton KC advanced a submission that is related to the potential prejudice issue. Mr Horton KC asserted that there was no risk of prejudice because the making of the development application is, in effect, an admission of the unlawfulness of the use.
[61] I reject that submission. There are many reasons why individuals make development applications with respect to existing lawful uses. Sometimes such applications are made to avoid the prospect of future litigation about the nature and extent of the lawful use and its defining features. A development application may also be pursued to obtain a single, consolidated approval with respect to a large parcel of land, including areas containing existing lawful uses. That appears to be the situation here.
[62] The development application seeks approval for uses that are not limited to those the subject of the criminal proceedings. In this case, given the nature and extent of development for which approval is sought, it would be artificial to exclude the area of those tenancies that are the subject of the criminal proceedings. In addition, it strikes me as illogical to approach the subject development application by excluding discrete parts of the englobo parcel, even if the existing uses being conducted by certain tenants are lawful. Tenants come and go. A new development approval, if granted, would attach to the subject land and provide certainty with respect to its future lawful use.
[63] As I have said, in addition to the three objective factors dealt with above, the Chief Executive's Outline advances four bases for dismissing Rivermakers Pty Ltd's application for a stay. Although these are expressed as relating to the application for a stay, some have relevance to the exercise of the discretion in respect of the alternative relief.
[64] The first basis is that the appeal and the criminal proceedings concern different controversies. The Chief Executive submits that this appeal is future-focused. According to the Chief Executive, this appeal involves determination of whether a range of hypothetical proposed uses described in Rivermakers Pty Ltd's development application should be endorsed by means of a development approval. The Chief Executive says that, in contrast, the criminal proceedings are looking to the past, considering the nature of activities historically occurring on the subject land and whether they were carried out lawfully.
[65] This submission is overly simplistic. It overlooks that:
(a) pursuant to s 45(5)(a)(ii) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017 (Qld), the impact assessment of a development application must be carried out having regard to any lawful use of the premises; and
(b) the lawfulness of the current uses on the subject land has been put in issue in the appeal.
[66] As such, there will be overlap in the fact-finding exercise in this appeal and that called for in the criminal proceedings in the Magistrates Court.
[67] The second basis advanced by the Chief Executive is that the evidence does not meet the necessary threshold for the grant of a stay in that it does not demonstrate a real risk of prejudice. This submission does not address the balancing exercise with respect to the alternative relief. As such, considering Rivermakers Pty Ltd's concession in oral submissions in reply, there is no need to address it.
[68] The third basis is an alleged absence of evidence that Mr Irvine has a formal role in connection with Rivermakers Pty Ltd. The Chief Executive submits that the evidence does not demonstrate that refusal to stay or adjourn the appeal would pose a risk to Mr Irvine's privilege against self-incrimination and the right to silence in the criminal proceedings_._ The Chief Executive seeks to further this submission by reference to the fact that, to date, the only lay witness statement produced by Rivermakers Pty Ltd is one given by Mr McVay and not Mr Irvine.
[69] At face value, this submission had some force on the evidence available at the time the Chief Executive's Outline was filed. However, the Chief Executive's maintenance of the submission does not withstand scrutiny.
[70] The Chief Executive's submission ignores subsequent uncontested evidence that demonstrates Mr Irvine has a substantive role: see paragraph [26] above. Despite that evidence, the Chief Executive did not withdraw its submissions. In addition, unlike the other parties in the appeal, the Chief Executive made no attempt to adjust its submissions in light of the uncontested evidence. Its submission is not supported on the current state of the evidence. I reject it on that basis.
[71] Further, and in any event, the Chief Executive's submissions on this issue are unpersuasive. The Chief Executive's maintenance of the submissions, without reference to other key factors within their knowledge, paints an incomplete picture. As such, the maintenance of the submission has the propensity to create a false impression about the extent of risk that continuation of the appeal poses to the rights of Mr Irvine. This is because:
(a) insofar as the Chief Executive relies on the fact that the only lay witness statement given to date was that of Mr McVay, the submission is not tempered by an acknowledgment that, in the criminal proceedings, s 228 of the Planning Act 2016 facilitates proof of state of mind through a representative's conduct: see paragraph [30] above; and
(b) the brief of evidence delivered to date in the criminal proceedings indicates that the Chief Executive is aware that:
(i) there is a relationship between Rivermakers Pty Ltd, BMI Group and Dunhill Properties Pty Ltd's charged director; and
(ii) the activities of BMI Group, including the making of the development application the subject of this appeal (and the relationship between BMI Group and Dunhill Properties Pty Ltd's charged director) are an important feature of the prosecution case in the criminal proceedings.
[72] The Chief Executive's submissions are also unpersuasive given the Chief Executive elected not to respond to the written submissions by Rivermakers Pty Ltd dated 30 January 2026. Rivermakers Pty Ltd's submissions are compelling. They identify a risk occasioned by the confluence of facts and circumstances pertaining here, namely:
(a) the nature and extent of the existing uses are facts in issue in this appeal and the criminal proceedings;
(b) the brief of evidence delivered to date in the criminal proceedings indicates that the activities of BMI Group, including the making of the development application the subject of this appeal (and the relationship between BMI Group and Dunhill Properties Pty Ltd's charged director) are an important feature of the prosecution case in the criminal proceedings;
(c) Mr Irvine is involved in the management and control of Rivermakers Pty Ltd through the BMI Group's role and is one of the individuals who gives instructions on behalf of Rivermakers Pty Ltd in this appeal; and
(d) although some joint expert reports have been completed, there is a genuine prospect that further joint expert reports will be required and, under r 27 of the Planning and Environment Court Rules 2018, Rivermakers Pty Ltd (through those giving instructions on its behalf) is required to:
"... do all things reasonably necessary or expedient to ensure an expert chosen by the active party is ready to take part fully, properly and promptly in the meeting, including by giving the expert ... enough information and opportunity for the expert to adequately investigate the facts in relation to the issue in dispute in the proceeding."
[73] Those circumstances indicate that the continued preparation of this appeal will pose a degree of risk to Mr Irvine's privilege against self-incrimination and his right to silence in the criminal proceedings.
[74] The fourth reason advanced by the Chief Executive is that Rivermakers Pty Ltd is not the only party or person prejudiced by the granting of a stay. Again, this submission relates to the grant of a stay. It does not address the balancing exercise called for when determining whether to grant an adjournment. I consider the potential prejudice to other parties and the public occasioned by an adjournment below: see paragraphs [77] and [78] below.
"22. In the end, what seems to concern the Appellant is that it will become clear in this proceeding that there are uses on the Development Land that are unlawful. But that is something which arises necessarily by reason of the fact that the Appellant sought (and needs to seek) a development approval. And that bare fact is consistent with the criminal proceedings.
[76] I reject these submissions. Paragraph 22 of the Chief Executive's Outline is premised on a presumption of guilt and ignores those matters to which I have referred in paragraph [60] above.
[77] With respect to paragraph 23 of the Chief Executive's Outline, I accept the general proposition that there is a public benefit in the expeditious finalisation of proceedings in this Court. That said, the submission appears to be premised on an assumption that the only considerations relevant to public benefit are those advanced by the Chief Executive in its written outline. I do not accept that premise.
[78] Many considerations are relevant to public benefit. They include the potential that there will be interruptions to the trial, including adjournments, occasioned by the pending criminal proceedings and the Chief Executive's presence in this appeal. That potential was acknowledged by the other parties. Such matters sound in a waste of public resources dedicated to the efficient disposition of proceedings in this Court.
[79] Despite having adequate opportunity to do so, Mr Horton KC made it clear that the Chief Executive was not interested in making submissions that addressed such considerations and the weight to be attributed to them. In the circumstances, I am not prepared to give any meaningful weight to the Chief Executive's submission about the public benefit in finalisation of this appeal.
[80] For the reasons provided above, the Chief Executive's written and oral submissions do not present a persuasive hurdle to the relief sought by Rivermakers Pty Ltd.
[81] I now turn to consider the key considerations identified by Rivermakers Pty Ltd, the Council and Australian Country Choice Group.
What are the key considerations identified by Rivermakers Pty Ltd, the Council and Australian Country Choice Group?
[82] As I have mentioned, by the conclusion of the hearing of the application in pending proceeding, there was common ground between Rivermakers Pty Ltd, the Council and Australian Country Choice Group about the considerations that are relevant to the exercise of the Court's discretion. Those are the matters to which I now turn. My findings below do not relate to the Chief Executive's position as I have already addressed that above.
[83] Rivermakers Pty Ltd relies on the confluence of several matters to support its application for an adjournment. Its submissions call for determination of five questions, namely:
Is there a commonality of issues between the criminal proceedings and this appeal?
[84] The parties acknowledge that there is a commonality of issues between the criminal proceedings and the appeal.
[85] In that regard, during oral submissions, the Council and Australian Country Choice Group appropriately acknowledged that, in the criminal proceedings, the prosecutor will be required to prove, amongst other things:
(a) the use that is alleged to have occurred on part of the subject land during the charged period; and
(b) that the use was unlawful during the charged period.
[86] It is reasonable to expect that, to prove these matters, the prosecutor will need to adduce evidence about nature and extent of activities that characterise the alleged uses.
[87] During the hearing of this application, the Chief Executive did not cavil with any of these propositions, despite having an opportunity to do so.
[88] I accept the above propositions with respect to the criminal proceedings.
[89] In relation to the issues in this appeal, Rivermakers Pty Ltd submits that evidence produced by, and arguments made on behalf of, Rivermakers Pty Ltd in this appeal have already, and will continue to, detail the use of the subject land during the charged period in the criminal proceedings.
[90] During oral submissions, the Council and Australian Country Choice Group appropriately acknowledged that, for Rivermakers Pty Ltd to fully meet the case raised against it in the appeal, it is reasonable to expect Rivermakers Pty Ltd would adduce evidence about:
(a) the nature and extent of activities that characterise the existing uses on the subject land, including those the subject of the criminal proceedings;
(b) the existing impacts associated with such uses, including traffic and reverse amenity impacts; and
(c) the extent to which the existing impacts can legitimately form a baseline for measurement and assessment of impacts by reference to their lawfulness.
[91] During the hearing of this application, the Chief Executive did not cavil with this proposition either, again, despite having an opportunity to do so.
(a) there a commonality of issues between the criminal proceedings and this appeal; and
(b) there will be overlap in the fact-finding exercise in this appeal and that called for in the criminal proceedings in the Magistrates Court.
Is there a genuine prospect that the prosecution would use information produced in this appeal to improve its case in the criminal proceedings?
[93] Rivermakers Pty Ltd submits that it is not fanciful to suggest that the prosecution would use information produced by it in this proceeding to improve its case against the criminal defendants.
[94] Rivermakers Pty Ltd points to two matters to support its submission.
[95] First, the legal teams for the prosecution in the criminal proceedings and the Chief Executive in this appeal are identical. This is established by the submissions made by the Chief Executive.
[96] Second, Rivermakers Pty Ltd refers to the types of evidence that has been included in the brief of evidence in the criminal proceedings that has been produced to date. That evidence includes:
(a) a statement of an officer of the Chief Executive that refers to the BMI Group and purports to attach, amongst other things:
(i) extracts from the Rivermakers Pty Ltd website that indicate that the BMI Group is involved in the lodgement of the development application the subject of this appeal;
(ii) extracts from the BMI Group website referring to the Rivermakers Pty Ltd's project on the subject land; and
(iii) extracts from the BMI Group website that identify Mr Irvine, the charged director of Dunhill Properties Pty Ltd, as Chief Executive Officer of the BMI Group;
(b) a letter purporting to be from the director of Dunhill Properties Pty Ltd in his role as Managing Director of the BMI Group regarding the "Rivermakers" Master Plan Proposal;
(c) a letter purporting to be from the director of Dunhill Properties Pty Ltd in his role as Managing Director of the BMI Group regarding "the Development Application for our Rivermaker's industrial precinct Master Plan";
(d) a letter purporting to be from the director of Dunhill Properties Pty Ltd in his role as Managing Director of the BMI Group regarding Temporary Local Planning Instrument 01/2023, which applies to the subject land and is in issue in this appeal; and
(e) a letter purporting to be from the director of Dunhill Properties Pty Ltd in his role as Managing Director of the BMI Group outlining the "Rivermakers project" by reference to, amongst other things, "The Depot Precinct" and "The Heritage Quarter".
[97] According to Rivermakers Pty Ltd, one can infer from the brief of evidence provided to date by the prosecution that the activities of BMI Group, including the making of the development application the subject of this appeal and the relationship between BMI Group and Dunhill Properties Pty Ltd's charged director, are an important feature of the prosecution's case.
[98] None of the other parties cavilled with these submissions. To the contrary, the oral submissions made by Mr Horton KC on behalf of the Chief Executive, after hearing from each of the other parties, support a finding that the prosecution would use information produced by it in this proceeding to improve its case against the criminal defendants. Relevantly, Mr Horon KC submitted that Rivermakers Pty Ltd's decision to make the development application the subject of this appeal amounts to an admission of guilt.
[99] In the circumstances, I accept Rivermakers Pty Ltd's submissions on this issue.
Is there a relevant nexus between Rivermakers Pty Ltd, Dunhill Properties Pty Ltd and Mr Irvine?
[100] Rivermakers Pty Ltd submits that there is a nexus between Rivermakers Pty Ltd, Dunhill Properties Pty Ltd and Mr Irvine that is relevant to, and supports the application for, an adjournment.
[102] Considered in isolation, these matters are not sufficient to support an adjournment. That said, they establish that there is sufficient nexus between Rivermakers Pty Ltd, Dunhill Properties Pty Ltd and Mr Irvine to warrant scrutiny of the potential that continued preparation of this appeal may cause prejudice to Mr Irvine, and consequently Dunhill Properties Pty Ltd, in the criminal proceedings. I turn to that question now.
Is there a genuine risk of prejudice to Dunhill Properties Pty Ltd and Mr Irvine?
[103] Rivermakers Pty Ltd submits that there is a real prospect of substantial prejudice to Dunhill Properties Pty Ltd and Mr Irvine produced by the confluence of:
(a) the commonality of issues;
(b) the likelihood that the prosecution will use information produced in this appeal;
(c) the nexus between Rivermakers Pty Ltd, Dunhill Properties Pty Ltd and Mr Irvine;
(d) the nature of the evidence that is likely to be produced in the appeal; and
(e) the obligations of parties in appeals in this Court.
[104] I have already addressed three of these matters above.
[105] With respect to the nature of the evidence, Rivermakers Pty Ltd submits that it is not incumbent on it to explain how specific parts of the evidence filed to date, or intended to be relied upon, may assist or damage the prosecution's case or expose for analysis its defence in the criminal prosecution. It says that the risks of doing so are the same risks sought to be addressed by this application in pending proceeding.
[106] That said, Rivermakers Pty Ltd submits that, by its very nature, the evidence produced in this appeal may:
(a) support the allegations in the complaint that uses were occurring as particularised, providing an unfair opportunity for the prosecution to improve its case where both defendants have a right to silence, and the director has a privilege against self-incrimination; or
(b) provide information or details about the uses occurring that may unfairly put the prosecution on notice of potential defence arguments in advance of the complaints being heard in the Magistrates Court.
[107] Rivermakers Pty Ltd provides further explanation of these submissions, by reference to issues in the appeal, at paragraph 23 of the Appellant's Reply Submissions on the Stay Application.
[108] Rivermakers Pty Ltd also submits that it is of little moment that the director of Dunhill Properties Pty Ltd himself may not be required to give evidence in this appeal.
[109] None of the other parties cavilled with these submissions. I accept them. They are supported by:
(a) my consideration of the issues in this appeal; and
(b) s 228 of the Planning Act 2016, which I have set out in paragraph [30] above.
[110] Rivermakers Pty Ltd contends that the risk is a continuing one.
[111] In support of its submission, Rivermakers Pty Ltd says:
(a) it is not fanciful to suggest that the prosecution's evidence may change over time;
(b) piecemeal delivery of a brief of evidence is not unusual in Magistrates Court proceedings; and
(c) despite being a "backward looking" exercise, in criminal proceedings, the prosecution is not prohibited from providing further evidence as the case progresses.
[112] Although Australian Country Choice Group does not dispute Rivermaker Pty Ltd's contentions about the conduct of the criminal proceedings, it disputes the continuing nature of the risk. It submits that any prejudice has already been occasioned given the joint expert meetings have already occurred.
[113] I accept Rivermakers Pty Ltd's submissions. They are supported by the evidence.
[114] With respect to the criminal proceedings, the evidence demonstrates that, to date, the brief has been delivered in two tranches. Further documents were delivered on 22 December 2025. They included a further statement of an officer of the Chief Executive dated 11 December 2025, which was based on a further inspection of the subject land conducted on 30 November 2025 (after Rivermakers Pty Ltd addendum submissions in this application were filed on 28 November 2025).
[115] As for the progress of this appeal, the evidence shows that:
(a) the joint meeting of the traffic engineers resulted in a joint expert report that identified the need for a traffic impact assessment to be completed by Rivermaker Pty Ltd's traffic engineer; and
(b) the town planning joint expert report has not been concluded.
[116] In those circumstances, it is relevant to have regard to Rivermakers Pty Ltd's obligations under r 27 of the Planning and Environment Court Rules 2018 (Qld). It states:
"27 Active parties must ensure experts ready to take part in meeting of experts
Before attending a meeting of experts, each active party to the P&E Court proceeding must do all things reasonably necessary or expedient to ensure an expert chosen by the active party is ready to take part fully, properly and promptly in the meeting, including by giving the expert -
(a) reasonable notice that the P&E Court has ordered or directed a meeting of experts or that an ADR registrar has convened a meeting of experts; and
(b) notice of the contents of any order or direction about the meeting, including the time by which the meeting must be held; and
(c) reasonable notice of the issue in dispute in the proceeding to the extent it is relevant to the expert's expertise; and
(d) enough information and opportunity for the expert to adequately investigate the facts in relation to the issue in dispute in the proceeding."
[117] In addition, Rivermakers Pty Ltd has persuaded me that:
(a) information and instructions are required for the traffic impact assessment to be completed and will be required for a further joint expert meeting;
(b) further instructions may be needed or desirable depending on when it recommences; and
(c) after the production of joint expert reports addressing need and amenity, there may be a need to brief the experts with further information before they prepare their separate reports.
[118] Overall, Rivermakers Pty Ltd has persuaded me that the continuation of the appeal without controls on the dissemination of information should be avoided. It would present a genuine risk that Rivermakers Pty Ltd would be forced to make an election about whether to produce evidence or other information about activities that have occurred or are presently occurring on the subject land. The election may require it to weigh up the risk of prosecution of Mr Irvine (and potentially other related persons) against its prospects in this appeal. In addition, regardless of how Rivermakers Pty Ltd elects to proceed, the information or evidence it produces may assist the prosecution case.
[119] Given the nexus between Mr Irvine and Rivermakers Pty Ltd, I am persuaded that there is a prospect of prejudice to Mr Irvine and Dunhill Properties Pty Ltd.
Is it appropriate to exercise the discretion to adjourn the preparation for, and hearing of, this appeal?
[120] Although there is little dispute between the parties about many of the matters to which I have referred above, the Council and Australian Country Choice Group maintain that Rivermakers Pty Ltd has not demonstrated that it is appropriate to exercise the discretion to adjourn the preparation for, and hearing of, this appeal.
[121] For the reasons already provided, I am persuaded that care needs to be taken in this appeal to ensure that there is not an appreciable and unacceptable risk to:
(a) the public's legitimate expectation that the pursuance of private rights in these proceedings do not compromise the prosecution of the alleged offences in the Magistrates Court;
(b) Dunhill Properties Pty Ltd's right to silence; and
(c) Mr Irvine's right to silence and privilege against self-incrimination.
[122] In exercising my discretion, it is also important that I recognise the public's legitimate expectation that this Court would properly discharge its obligation under s 10 of the Planning and Environment Court Act 2016.
[123] With respect to the Court's obligation, the Council and Australian Country Choice Group do not dispute that the existence of the criminal proceedings presents a genuine risk to the efficient conduct of the appeal.
[124] Rivermakers Pty Ltd contends that the identified risks are appropriately addressed by adjourning the preparation of this appeal for 12 months. The Council and Australian Country Choice Group disagree.
[125] The Council submits that the balance does not favour granting an adjournment as the potential for disruption to the hearing of the appeal will, in any event, persist. This is because the existing use of the subject land is continuing. As such, it says that the continued use, of itself, gives rise to the potential for future criminal proceedings and associated disruptions to the hearing of this appeal.
[126] I greatly appreciate the assistance Mr Greggery KC's provided during the hearing. It allowed me to test the bounds of the Council's submission. It assisted me in my assessment of the weight to be attributed to the risk. Mr Greggery KC's responses persuade me to place less weight on the risk of disruption occasioned by the criminal proceedings than I was otherwise minded to before hearing oral submissions.
[127] Australian Country Choice Group advances a different basis for refusing the application for an adjournment. It says that the evidence does not establish that Mr Irvine has any relevant knowledge of the existing uses. On that basis, Australian Country Choice Group submits that Rivermakers Pty Ltd has not demonstrated that Mr Irvine's right to silence or privilege against self-incrimination hampers Rivermakers Pty Ltd's ability to properly put its case before this Court.
[128] I was greatly assisted by Mr Hunter KC's responses to my queries testing that submission. They persuade me to moderate the weight placed on Rivermakers Pty Ltd's submissions about prejudice. That said, given the evidentiary provision in s 228 of the Planning Act 2016, I am not prepared to completely disregard this issue.
[129] In the circumstances, I am not presently persuaded that the balance is appropriately struck by ordering that the preparation for, and hearing of, this appeal be adjourned for 12 months. That is because it seems to me that, with careful case management measures controlling the dissemination of information, it might be possible for some steps to be taken in the appeal.
[130] For the moment, I am not prepared to make an order adjourning the appeal. Given my obligations under s 10 of the Planning and Environment Court Act 2016, it seems appropriate that I first explore potential case management measures that might be employed.
[131] Whether case management measures can strike an appropriate balance between the risks identified in paragraph [121] above and the obligation under s 10 of the Planning and Environment Court Act 2016 will depend on several matters about which I presently have no awareness. They include:
(a) the pace at which the prosecution is progressing the criminal proceedings in the Magistrates' Court; and
(b) the time that Rivermakers Pty Ltd would require to prepare the further traffic impact assessment that is anticipated in the joint expert report of the traffic engineers.
[132] Depending on the diligence with which the prosecution is being pursued in the Magistrates' Court, it may be possible to strike an appropriate balance by an order that:
(a) requires Rivermakers Pty Ltd to prepare the further traffic impact assessment that is anticipated in the joint expert report of the traffic engineers; but
(b) does not, for the moment, compel the provision of that report to the other parties other than pursuant to measures that protect the confidentiality of its contents by:
(i) limiting its release to the lawyers and traffic engineers for the Council and Australian Country Choice Group and, perhaps, the traffic engineer for the Chief Executive; and
(ii) compelling those individuals who receive the report to provide an undertaking to the Court not to divulge its contents to anyone else, including the lawyers for the Chief Executive, and any staff of the Chief Executive, until after the hearing of the criminal proceedings or unless authorised by order of the Court.
[133] I will list the matter for further mention on 2 April 2026. The purpose of the mention is to:
(a) hear from the Chief Executive about the progress of the criminal proceedings; and
(b) provide an opportunity to the parties to make submissions about whether any case management measures could be appropriately adopted.
[1] In this respect, I acknowledge Mr Holt KC's appropriate concession in oral submissions in reply. I thank him for it. The exercise of forensic judgment of this type is not only appropriate: it is important as it ensures the Court's resources are not wasted addressing aspects of applications that, after oral argument, no longer warrant detailed consideration.
Rivermakers Pty Ltd
Brisbane City Council & Ors [2026] QPEC 11