BGM Projects Pty Ltd & Anor v. Caboolture Shire Council

[2006] QPEC 78

[2006] QPEC 078

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1397 of 2005

BGM PROJECTS PTY LTD (ACN 102 165 328) and EMZAY PTY LTD (ACN 101 659 097)

Appellants

and

CABOOLTURE SHIRE COUNCIL

and

HERITAGE PACIFIC as Trustee for the Heritage Property Trust

and

BORAL RESOURCES (QUEENSLAND) PTY LTD
(ACN 009 671 809)

Respondent

First Co-Respondent

Second Co-Respondent

BRISBANE

..DATE 26/05/2006

ORDER

CATCHWORDS:  Developer appellants' request for 6 months' delay in the hope they might obtain an exemption for the site and proposal from the South East Queensland Regional Plan refused

HIS HONOUR:  The opposing contentions this morning are that the matter should be adjourned for further mention in six months time as proposed by the appellant, and that if it is adjourned at all, it should only be for a couple of weeks as proposed by the other three parties. 

The purpose of the appellant, which only yesterday filed an affidavit of Mr Mohr to provide the Court with evidence, is to have sufficient time in which to approach the State authorities to have the South East Queensland Regional Plan apply in a different way or not at all. 

It is necessary for the appellant, which wants to develop a 520 lot subdivision, to do something about the site's having now been assigned to the Rural Production and Regional landscape designation.  That, according to Mr Mohr, has been assigned as a result of what he called a "desktop assessment" by the ERA. 

He has got as far as setting up an on-site meeting between ERA personnel and the appellants consultants "to sort out terms of reference to review the designation as koala habitat". 

The second co-respondent is a quarry operator looking to its commercial interests which obviously include protection of its existing or expanded operation against complaints by residents.  The first co-respondent, as its name suggests, is pursuing heritage or conservation concerns.  Mr Kevin says that the Council is confident there are in its own planning instruments compelling bases for rejection of the development application and that the Court should not be distracted by the interest which Mr Mohr's issue may hold into contemplating that it is the main issue in the appeal.

It appears to be accepted on all sides that unless the State authorities will do something about the regional plan, most obviously by creating some sort of exemption, this appeal cannot succeed.  Mr Kevin's information is that the State authorities are not interested in piecemeal reviews of the plan.  It is not necessary for the Court to decide anything today.  Both Mr Kevin and Mr Bale are simply asking for an adjournment of a couple of weeks so that they can consider the contents of Mr Mohr's affidavit and prepare material in response. 

I think the respondent and co-respondents ought to have the opportunity at an early date, rather than await uncertain developments over six months, to persuade the Court that the appropriate course is to get the appeal, which relates to an application filed in 2003, on for determination. 

According to Mr Kevin at least, it has not been contradicted by anyone else, if some exemption is obtained from State authorities the applicant would be as well placed to pursue its proposal by a new application as it would be if it could rely on the earlier lodgement date of the current one.

The matter will be adjourned to the 9th of June 2006 when, as things stand at present, the Judge may have time to consider the issue of a six month adjournment at some length.  So, adjourned to the 9th of June 2006.

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