Ahern v Rockhampton Regional Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ahern & Anor v Rockhampton Regional Council & Anor [2010] QPEC 74

PARTIES:

Michael Francis Ahern and Lynette Valerie Ahern

(Appellants)

and

Rockhampton Regional Council

(Respondent)

and

S K Drafting

(Co-Respondent)

FILE NO:

132 of 2008

PROCEEDING:

Preliminary determination

ORIGINATING COURT:

Planning and Environment Court, Rockhampton

DELIVERED ON:

27 August 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

11 June 2010

JUDGE:

Newton DCJ

ORDER:

The questions contained in the order of Britton DCJ dated 26 March 2010 be answered as follows:

(1) Yes

(2) No

(3) No

(4) Yes.

CATCHWORDS:

COUNSEL:

Mr P Favell for the appellant

Mr S Ure for the respondent

Mr J Houston for the co-respondent

SOLICITORS:

Robert Harris & Co for the appellant

King & Company for the respondent

McInnes Wilson for the co-respondent

1. A development application was lodged by the co-respondent (S K Drafting) on 12 October 2007 for a development permit with respect to a material change of use and the development of 14 units (the development application). The respondent council issued a decision notice on or about 31 October 2008 approving the development application (the decision notice). On 26 March 2010 Britton DCJ ordered that the following questions be the subject of preliminary determination:

(1)   whether the development application was properly made pursuant to the requirements of section 3.2.1 of the Integrated Planning Act 1997 (IPA);

(2)   whether the respondent’s decision is void as it does not extend to apply to all the land for which the co-respondent is seeking a development permit;

(3)   whether the co-respondent has complied with the requirements for public notification of the development application; and

(4)   whether the respondent council’s decision lacks finality and is void for uncertainty.

1. The Court has been assisted in this matter by both oral and written submissions on behalf of the appellants and the co-respondent and also by the receipt of written submissions on behalf of the respondent council, the latter adopting a neutral position in these proceedings.

1. The subject land comprises three properties being 45, 47 and 49 Todd Avenue, Yeppoon. The details of the subject land are as follows:

45 Todd Avenue

(i)         Lot details – Common Property of Todd Avenue Villas Community Title Scheme 27191, Title Reference 50278330 (the Common Property); Lot 1 on SP 121346, Title Reference 50278331 (Lot 1); Lot 2 on SP 121346, Title Reference 50278332 (Lot 2).

(ii)       The property comprises 1,062 m².

(iii)      The Body Corporate for Todd Avenue Villas Community Title Scheme 27191 (the Body Corporate) is the registered owner of the Common Property.

(iv)       Tara Park CQ Pty Ltd ACN 064 498 791 as trustee of Tara Park CQ Unit Trust (Tara Park) is the registered owner of Lot 1 and Lot 2.

47 Todd Avenue

(v)        Lot details – Lot 24 on RP 911249, Title Reference 50207074 (Lot 24).

(vi)       The property comprises 700 m².

(vii)     The registered owner of Lot 24 is Tara Park.

49…