Bird v Chief Executive, Department of Transport and Main Roads

[2012] QPEC 11

[2012] QPEC 11

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3197 of 2010

G J BIRD

and

P K BIRD

Appellants

and

LOGAN CITY COUNCIL

and

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS

Respondents

BRISBANE

..DATE 24/01/2012

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 4.1.50(2), s 4.1.54(2)

Where outcome of a submitter appeal was some change in conditions, but not in ways the submitter had formally contended for, the appeal was dismissed subject to amended conditions rather than allowed to the limited extent of the change

HIS HONOUR:  Today is the day for making final orders to resolve this appeal.  The Court published reasons last month for its conclusion that the appeal ought to be dismissed. 

The course of evidence revealed some respects in which changing the conditions would enhance the development from every point of view.  Those changes were not ones which the appellant had sought in any of the appeal documents.  They are very far from being matters of such weight that the fate of the appeal would have been different but for the changes being adopted.

Ms Coulson for the Council out of an abundance of caution questions the appropriateness of Mr Connor's proposed order which provides that the appeal be dismissed and that the development be approved subject to the amended conditions of the attachment to the order marked A.  The parties are agreed that that order reflects the Court's intentions identified in the reasons subject to Ms Coulson's point which is essentially that if the Court dismisses the appeal the Council's decision which approved the development application is reinstated,
re-enlivened or confirmed, leaving the Court without jurisdiction to take any step by way of amending conditions.

The Court's experience is that in the common situation of submitter appeals essentially failing conditions are often changed to respond to the submitters’ concerns.  On many occasions the outcome is an order allowing the appeal to a limited extent in terms of the changes to conditions and that's what Ms Coulson proposed to the Court today.  On many occasions also the Court dismisses the appeal, but makes a further order of the kind Mr Connor proposes here.

The matter is not the subject of any authority, although I've had occasion in other appeals to comment about it. Mr Connor's response to the point is that section 4.1.54 of the Integrated Planning Act 1997 is of general application and available, in particular subsection (2) is available, whether an appeal is allowed or dismissed. As he says, the only reference in relevant parts of the Act to appeals being dismissed is at section 4.1.50 subsection (2).

It seems to me that Mr Connor is correct and that section 4.1.54, in particular subsection (2)(b), is available. For that reason the Court will initial the form of order handed up by him and make an order accordingly.

Order as per initialled draft.  Thank you all.

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