Bluewater Cairns Group Pty Ltd v Tablelands Regional Council

[2011] QPEC 5

[2011] QPEC 5

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3480 of 2010

BLUEWATER CAIRNS GROUP PTY LTD	Applicant
and
TABLELANDS REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 27/01/2011

..DAY 1

ORDER  

JUDGMENTS

Sustainable Planning Act 2009 s 367, s 369, s 371, s 376

Court as the responsible entity approves request to change conditions of a preliminary approval and a development permit included in the order resolving a developer appeal - conditions required a performance bond in favour of the council of 2 years duration - council agreeable to reduction to 1 year - stage 1 had been sold-off to 29 individual owners

- not practicable or necessary to obtain their consent
HIS HONOUR:  The court makes an order in terms of the initialled draft.

One of the inconvenient features of the current regime is that if a development approval is to be changed, even in some fairly minor respect, it's necessary to approach what the Sustainable Planning Act 2009 s 369 calls the responsible entity to get its approval of the proposed change.

If the responsible entity is the court the legislation requires that the court be approached. See s 369(1)(d). It is rather curious that the condition of a preliminary approval for a 119 lot residential development on the Atherton Tableland included in Judge Wilson's order of the 8th of December 2008 and a condition of a development permit granted pursuant to the same order for stage 1 (which are sought to be changed under the section) relate to a matter which is very much between the applicant in this originating application and the respondent Council.

His Honour's order was made in the present applicant's developer appeal 1803 of 2008.  The conditions which were numbered 17 in respect of the preliminary approval and 14 in respect of the development permit were in these terms: "A road construction performance bond should be lodged to ensure that all roads are constructed to Council's required standard.  The bond amount will be determined prior to the issue of a development permit for operational works and the bond period shall be two years."

Although those arrangements seemed satisfactory all round on the 8th of December 2008 the applicant came to regard the bond arrangements as unacceptably onerous and has been able to persuade the Council that a bond period of one year is appropriate.  The meaning of that is that the Council will assume responsibility for the upkeep of the road and without the advantage of recourse to a bond for a second year.

The Council indicated through its solicitor Ms Hobbs, who participated in today's hearing by telephone that it was happy to undertake the additional risk. From any point of view the change is a "permissible change" for purposes of the Act. It's not going to change the development at all. See s 367.

The order signed recites the Court's satisfaction that the originating application did not have to be accompanied by the consent of landowners. Stage 1 has been sold so that there are now 29 individual owners. The court as the responsibile entity is satisfied pursuant to section 371E(e)(i) that it's not practicable to obtain the consent of all of them to the change.

So far as paragraph (ii) is concerned the court is also satisfied that the change requested does not materially affect any owner's land.  It would not seem to affect any owner's land at all.  One can theorise that the owners might have an interest in the bond arrangements applying for a second year if there's some possibility that a road might fail in that period and the Council, without the opportunity to call in a bond, lacked funds to effect appropriate repairs or increased rates to being in necessary funds.

As I've said, I don't think that such an unlikely turn of events could be said to "materially affect the 29 owners' land."  As it happens the example which the Act gives for paragraph (e)(i) is as follows: "It may not be practicable to obtain the consent of all the owners of land if the land was subdivided after the development approval was given and is subsequently owned by multiple persons."

The draft order attends to the obligation which the Act places on the court as a responsible entity under section 376 of the Act by requiring the Registrar to give notice of the court's determination to the Chief Executive of the Department of Transport and Main Roads. That's an unusual obligation for a court to come under and I understand representations have been made that the legislation might be changed in this regard. Doubtless, developers and local authorities would be willing to submit to orders that they give notice where it's required. The applicant has provided a suitable written notice of the court’s decision in compliance with s 376 for the Registrar to send out.

The court has acted on an electronically transmitted copy of an affidavit which was lately sworn in Cairns and notes the applicant's undertaking to file the original when it's available.

I'm grateful to Mr Loos for letting me know that the arrangements involving the Registrar reflect ones which were ultimately implemented in another matter in which he appeared called RSA (Moorvale Station) Pty Ltd v Isaac Regional Council [2010] QPEC 147.

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