Barnes v Southern Downs Regional Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Barnes & Anor v Southern Downs Regional Council & Ors [2011] QPEC 75

PARTIES:

JOHN EDWARD MYTTON BARNES

AND

JEFFREY FREDERICK COOK
(Appellants)

AND

SOUTHERN DOWNS REGIONAL COUNCIL
(Respondent)

AND

THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(First Co-Respondent)

AND

THE McCONAGHY GROUP PTY LTD

(Second Co-Respondent)

FILE NO:

BD 313/2010

DIVISION:

PLANNING AND ENVIRONMENT

PROCEEDING:

APPEAL

ORIGINATING COURT:

BRISBANE

DELIVERED ON:

03 June 2011

DELIVERED AT:

BRISBANE

HEARING DATE:

20 May 2011

JUDGE:

Rackemann DCJ

ORDER:

The second co-respondent’s application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION TO STRIKE OUT GROUNDS OF APPEAL – SUBMITTER APPEAL AGAINST IMPACT ASSESSABLE DEVELOPMENT – WHETHER THE GROUNDS OF APPEAL MAY RELY ON THE LAWS ADMINISTERED BY A CONCURRENCE AGENCY

COUNSEL:

C McGrath for the Appellant

M Connor (Solicitor) for the Respondent

S Barclay for the 1^st Co-Respondent

D Favell for the 2^nd Co-Respondent

SOLICITORS:

Cook and Associates for the Appellant

Connor O’Meara Solicitors for the Respondent

Gadens Lawyers for the 2^nd Co-Respondent

1. The issues for determination relate to the permissible scope of an adverse submitter appeal against the Council’s decision to grant a development approval for the partial demolition of a building at 84 Fitzroy Street, Warwick.  The building is listed in the Queensland Heritage Register and in the Council’s Register of Cultural Heritage Places. The respondent was the assessment manager. The first co-respondent was a concurrence agency, which required certain conditions to be attached to the approval. The appeal is governed by the now repealed provisions of the Integrated Planning Act 1997 (Qld) (IPA).[1]

   [1]See s 819(4) of the Sustainable Planning Act.

1. In paragraph 3 of their amended grounds of appeal and further and better particulars, the appellants assert that the development application, in proposing to demolish the rear of 84 Fitzroy Street, conflicts with the laws and policies administered by the first co-respondent as a concurrence agency and, in particular, with the Queensland Heritage Act 1992 (Qld). In paragraph 4 of the same document, they assert that the development application, in seeking that partial demolition, is also in conflict with the planning scheme. The second co-respondent now asks the Court to:

(a)        determine that the Appellants have no right of appeal with respect to that part of the Decision Notice that represents the response of the First Co-Respondent, as a concurrence agency; and

(b)        strike out the third ground of the Appellants’ “Amended Grounds of Appeal and Further and Better Particulars”.

1. The permissible scope of a submitter appeal was limited under the IPA. Section 4.1.28 provided relevantly as follows:

4.1.28    Appeals by Submitters – General

(1)A submitter for a development application may appeal to the Court only against –

(a)the part of the approval relating to the assessment manager’s decision under s 3.5.14 ...

1. Section 3.5.11 contained provisions applying to decisions generally. Other sections contained provisions relating to certain kinds of decisions or decisions on certain parts of an application. Section 3.5.12 applied…