Barnes v Southern Downs Regional Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Barnes v Southern Downs Regional Council  [2010] QPEC 111

PARTIES:

JOHN EDWARD MYTTON BARNES and

GEOFFREY FREDRICK COOK

(appellants)

v

SOUTHERN DOWNS REGIONAL COUNCIL

(respondent)

and

THE CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

(first co-respondent)

and

THE MCCONAGHY GROUP PTY LTD ACN 108 353 199

(second co-respondents)

FILE NO/S:

313/10

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

4 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2010

JUDGE:

Judge Rackemann

ORDER:

Order that it be taken that the decision notice included the conditional approval of the demolition of the house at 82, subject to the conditions in the concurrence agency response.

COUNSEL:

Dr McGrath for the appellants

Mr Connor for the respondents

Mr Barclay for the first co-respondent

Mr Sheridan for the second co-respondent

SOLICITORS:

Cook and Associates for the appellants

Connor O’Meara for the respondents

Gadens for the second co-respondents

HIS HONOUR:  This is a submitter appeal against an approval of an application for preliminary approval for building work, and, in particular, demolition work.

The application as made, on its face, related to the demolition of two buildings, being at 82 and 84 Fitzroy Street Warwick.  Those buildings are both included within the Heritage Register under the State Legislation, but only one of them, namely 84, is included within the Register of Cultural Heritage Places for the purposes of the respondent's planning scheme.

The fact that only one of the buildings was included under the Council's planning scheme is something which evidently eluded people at the outset.  The application, on its face, related to both of the buildings and, initially, the Council dealt with the matter on the basis that the demolition of both buildings was assessable under the planning scheme.  It appears that shortly before the decision was made their error was realised. The Council made its decision at a meeting on the 25th of November 2009 and issued a decision notice the next day. 

In its grounds of appeal the appellants contended that:

"Contrary to section 3.5.11 of the Integrated Planning Act (1997), the respondent failed to decide that part of the development application concerning demolition of 82 Fitzroy Street, being the land described as lot 1 on RP5801, and there was no valid decision for that part of the development application."

The solicitor for the respondent subsequently, by letter dated the 23rd of September 2010, effectively raised the same issue and that issue was set down for preliminary determination today. 

Of course, if the approval was indeed an approval in part only of the development application, then it would appear to follow from section 3.5.11(6)(c) of the Integrated Planning Act (1997) the balance of the application was taken to be refused.  The matter proceeded today, to argument, on the basis of whether the decision notice should be construed as extending to an approval of 82 or whether it related to 84 only. 

Reference to the Council…