Canungra Commercial Pty Ltd v Scenic Rim Regional Council

[2012] QPEC 37

[2012] QPEC 37

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2465 of 2012

CANUNGRA COMMERCIAL PTY LTD 
ACN 110 530 884

Applicant

and

SCENIC RIM REGIONAL COUNCIL

First Respondent

and

DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

and

DEPARTMENT OF TRANSPORT AND MAIN
ROADS

P & E Appeal No 813 of 2011

CANUNGRA COMMERCIAL PTY LTD
ACN 110 530 884

and

SCENIC RIM REGIONAL COUNCIL

and

DEPARTMENT OF ENVIRONMENT AND RESOURCES

and

DEPARTMENT OF TRANSPORT AND MAIN ROADS

and

TUAN NGUYEN AKA TONY NGUYEN,
ANNE NGUYEN, SIEN VAN NGUYEN AND
THAO PHUONG THI PHAM

and

CANUNGRA FOODWORKS PTY LTD
ACN 123 445 808

and

CANUNGRA AREA DEVELOPMENT ASSOCIATION INC

and

TONY NGUYEN AND OTHERS

Second Co-Respondent

Third Co-Respondent

Appellant

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

Fifth Responden

Sixth Respondent

Seventh Respondent

BRISBANE

..DATE 04/05/2012

..ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 457(2)

Conditions appeal and adverse submitter appeal challenging the development approval - application by developer for declaration that change to the proposal by adding a pedestrian access along a drainage easement across neighbouring land not included in the development application is minor change only - late provision by developer of hydrological evidence leads to request by other parties for adjournment
- costs thrown away by adjournment reserved
HIS HONOUR:  These appeals concern a shopping centre development in the town of Canungra for which the local authority granted approval.  There is a conditions Appeal by the developer and an adverse submitter appeal contending that the development ought not to have been approved at all. 

Set down for today is the developer's application for a declaration that a change to its proposal is a minor one which would not stand in the way of the proceedings going ahead to a full hearing on their merits.  The change is to provide an additional pedestrian access to the proposal from Christie Street, to be a three metre path constructed along the edge of a drainage easement which the council presently holds over adjoining land which might be called Lot 8.  It has never been indicated that Lot 8 is land included in the development proposal.  That is one of the issues. 

Of a less technical nature, from a legislative point of view,  are hydrological issues.  The drainage easement leads from Christie Street to higher land to the north and, indeed, beyond lot 8, runs beneath the carpark fronting Finch Road which forms part of the proposal.  The proposal dealt with drainage issues by piping underneath the carpark.  Piping is now the proposal for the uphill section of overland flow from Christie Street, so that the three metre wide pedestrian path can be at grade.  Hydrological issues are already in the appeal. 

An adjournment is sought by the respondent council and the appellants in Appeal 813 of 2011 on the basis of late receipt of evidence which the developer wants to rely on.  By its counsel Mr Ure, it concedes that it is appropriate, even desirable, for the other parties, Council in particular, to have an opportunity to consider the proposed change. 

The Court orders that costs thrown away by the adjournment be reserved. 

The adjournment is applied for by Mr Skoien's clients and Mr Loos's client, the council, but the application is not based on any concession that their preparation for today has been remiss. They say that they have effectively been compelled to seek the adjournment by the late provision of material for their consideration. This may give rise to the Courts having jurisdiction to make an order for payment of their costs thrown away under s 457(2) of the Sustainable Planning Act 2009.

... 

HIS HONOUR:  I vacate the direction for hearing of Canungra Commercial Pty Ltd's application today and adjourn both appeals for mention on the 18th of May 2012, costs thrown away by the adjournment to be reserved.

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