Buckler v Albert Shire Council

[2000] QPEC 44

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Buckler v Council of the Shire of Albert and Anor [2000] QPE 044
PARTIES:	PATRICK BUCKLER   Appellant And COUNCIL OF THE SHIRE OF ALBERT  Respondent And GOLD CORNER PTY LTD     Respondent by Election
FILE NO/S:	Appeal No 2560 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING COURT:	Planning and Environment
DELIVERED ON:	25th. July 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Judge Quirk
ORDER:	Application refused.
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. The application before the court relates to an appeal lodged in 1991 under previous legislation.  The appeal was by an objector against the Council’s approval of an application to rezone land at Gilston.  The proposed Special Facilities zoning was to allow a development involving town houses and detached villas.

1. For the purposes of deciding this application it is sufficient to say that the concerns of the appellant, Buckler, related to the provision  of sewerage services to the subject land. I was informed that, although a considerable period has elapsed since the appeal was instituted, that negotiations between the appellant and the respondent by election, Gold Corner Pty Ltd, have been on-going.  The negotiations have eventually borne fruit and an agreement between these parties has been reached. For the purposes of these proceedings, it is accepted that the terms of the agreement;

“bind the registered proprietor of the land only to develop the land when reticulated sewerage has been provided”.

1. In that context it should be noted that one of the conditions of the council’s approval was:

“disposal of sewerage at full cost to the applicant, by the following means:-

package treatment plant to Department of Environment and Heritage requirements”.

1. Following the resolution of his differences with the respondent by election, the appellant decided to trouble the court no further with the appeal and filed a Notice of Withdrawal.  He was entitled to do this under rule 11A of the Planning and Environment Court Rules 1999.

1. Upon being served with that notice, the respondent local authority made the application which is now before the court.  The application sought the following orders:-

1.          That the appeal not be discontinued.

2.That the appellant be given leave not to be heard at the hearing of the appeal.

3.Any such further order as this honourable court deems meets.” 

1. The respondent’s position is explained in an affidavit of its solicitor, Mr McDonald, who said:-

“I am instructed that, having regard to the changes in circumstances since the approval in 1991, the respondent seeks to address the adequacy of the conditions of the approval”.

His affidavit was supported by another from Mr Perkins, a town planning consultant who sought to identify reasons why the conditions of approval originally imposed should be revisited.

1. The respondent thought it relevant that the appellant and the respondent by election had settled their dispute as they had.  It was pointed out that if the development is to proceed in a way that respects that settlement, that condition 13 cannot stand and must be changed.  While that statement is obviously correct, I am not sure that it has any bearing on the fundamental issue in this case which is whether rule 11A contemplates the making orders of the kind sought by the respondent.

1. Section 6.1.35A of the Integrated Planning Act provides an opportunity for the holder of a conditional approval (given under the repealed Act) to make application to change a condition.  If the respondent by election wishes to proceed with its development in accordance with its agreement with the appellant, this is a course that it could sensibly adopt.  The consequences of the development resorting to a public sewerage system (appropriate conditions to infrastructure costs, etc) could then be suitably examined.

1. I am not convinced that it is a matter which necessitates this appeal’s proceeding to a hearing.  This would involve a re-hearing in which the respondent by election would bear the onus of showing that the application is, as a whole, one that should be approved, and if so upon what conditions.   

1. The appeal was one by an objector lodged under the repealed Act.  Accordingly it must be decided under that legislation (Section 6.1.39 of the Integrated Planning Act). The conditional approval was given under section 4.4(5) of the Local Government (Planning and Environment) Act and, had there not been an appeal that would have been the end of the matter.

1. Section 4.5 (1) of the Local Government (Planning and Environment) Act provides:

“Where in respect of an application for an amendment of a planning scheme –

(a)which has been approved by the local government, an appeal instituted in the court pursuant to s.7.1 is withdrawn from the court, or

(b)the court, upon the hearing of an appeal, determines that the application should be approved and referred to the local government; or

(c)which has been approved by the local government and no appeal has been instituted in the court pursuant to s.7.1;  the local government, where that application is an application referred to in s.4.3(2) (other than an application made under paragraph (b) of that sub-section), to apply to the chief executive for approval by the Governor in Council of the amendment.

1. By reason of section 4.5(1) a withdrawal of an appeal is a matter of some consequence. It brings the appeal proceedings to an end and gives rise to an obligation on the part of the local government to make the necessary application to the Chief Executive.

1. The application here seeks to deprive the respondent by election of the benefit of having the appeal terminated by the appellant’s Notice of Withdrawal in the way in which the rules provide.  While I understand the respondent’s concern at the time which has elapsed since the appeal was lodged (and the changes that have occurred in the meantime) I do not believe that what is here sought is the kind of result that rule 11A intends.

1. The rule does not appear to contemplate that an appellant be deprived of the right to discontinue a proceeding.  This can be compared to the position under the old rule 17 of the Local Government Court rules which, in certain circumstances, provided that the leave of the court to withdrawn an appeal must be obtained.    

1. I do not believe that this is altered by sub-rule (2).  The “application to the Court about the proceeding” which the sub-rule refers to is, in my view, intended to allow for any necessary adjustments to the position of any party which has been brought about by the institution of the appeal and its conduct.

1. A matter that might be obviously be relevant in that context would be an order for costs (if such an order was appropriate in the circumstances).  Other possible examples suggested by council for the respondent by election might be orders relating to the return of exhibits or material provided in confidence in the course of an appeal.  

1. There was a good deal of discussion about the merits of the council’s case for having the original decision reviewed. It is not however, necessary to deal with those matters as, in my view, rule 11A is not intended to disallow a party who has instituted proceedings in the court from withdrawing those proceedings and to prevent the matter being brought to an end as section 4.5 of the Local Government (Planning and Environment) Act intends.

1. Accordingly, the application must be refused.