Adam & Anor v. Gold Coast City Council

[2007] QPEC 25

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Adam & Anor v Gold Coast City Council [2007] QPEC 025

PARTIES:

NOEL ALEXANDER ADAM

And

WANDPINE PTY LTD

Appellants

and

GOLD COAST CITY COUNCIL

Respondent

FILE NO/S:

BD 947 of 2006

DIVISION:

Appellate

PROCEEDING:

Preliminary hearing in applicant appeal against deemed refusal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

28 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5, 6, 8, 9, 12 February 2007

JUDGE:

Robin QC DCJ

ORDER:

Preliminary point resolved in Respondent’s favour

CATCHWORDS:

Integrated Planning Act 1997 s 1.2.3(1)(d), s3.3.6, s 3.5.11(b)(b)

Developer’s appeal against deemed refusal of development permit for a subdivision – in course of proceeding Council offered a preliminary approval, but at hearing contended refusal of the Development Application was a proper outcome  – permit held premature where Council sewerage infrastructure to service the subdivision was not yet constructed, designed or funded and its routing was still unknown – general confidence held that that within the currency period infrastructure would be completed was insufficient to justify the giving of a development permit, appropriately conditioned. 

COUNSEL:

Fynes-Clinton for Appellants
Gallagher QC and T Trotter for Respondent

SOLICITORS:

DLA Phillips Fox for Appellants
Minter Ellison for Respondent

1. This an “applicant” appeal against a deemed refusal of a development application instituted under s 4.1.27 of the Integrated Planning Act 1997 (IPA).  See sub-section (1)(e).  The 77,550 m² site at 25 and 31 Karingal Drive, Pimpama is lots 34 and 35 on RP 152382.  The owners of the lots, the Degens and the Lochs, provided written consent to the making of the combined material change of use/reconfiguration of lot application made in April 2004 by Comino Wagner Development Consulting Pty Ltd and Planit Consulting Pty Ltd.  It sought a development permit for a material change of use (residential development) and reconfiguration of lot.  The accompanying report refers to “88 new lots together with a park area of 11810m².  Of these 88 lots, 6 are proposed as attached dwelling lots, 81 as detached dwelling lots and the remaining lot (86 lots) is identified for a Child Care Centre.”[1] The appellants rated no mention at that stage, but no challenge has been made by the respondent Council to their entitlement to pursue the appeal.

   [1] At the Council’s suggestion, the Child Care Centre is not being proceeded with at this stage.  The parties have co-operated to ensure that non-compliance with ss 3.2.9 and 3.2.12(2)(c) not prevent the appeal’s proceeding on the changed basis: see (B), 1 and 2 of Judge Wilson’s order of 3 May 2006

1. Whether the Council was entitled to submit in the appeal that the application should be refused became contentious.  By Judge Wilson’s order of 3 May 2006, which extended a couple of indulgences to the appellants, it was ordered that by a fixed date “the respondent notify the appellant in writing of its attitude to the development application the subject of this appeal.  If the respondent’s attitude is that the application ought…