Carbone v Esk Shire Council & Tipglance Pty Ltd

[2006] QPEC 91

[2006] QPEC 091

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No BD3207 of 2003

PAUL CARBONE	Appellant
and
ESK SHIRE COUNCIL	Respondent
and
TIPGLANCE PTY LTD	Co-Respondent

BRISBANE

..DATE 17/08/2006

ORDER
CATCHWORDS: Integrated Planning Act 1997 s 4.1.47(2) - development to expand and relocate hotel authorised to proceed after successful developer appeal, which remains alive for determination regarding appropriateness of a particulars condition.

HIS HONOUR:  This matter has been brought on in the hope of achieving finalisation.  That has required a good deal of
co-operation by the parties in devising an appropriate conditions package to give effect to conclusions set out in the Court's reasons, delivered on the 3rd of March this year after a hearing the preceding month. 

One issue remains contentious.  Part of the contention relates to whether it has, until now, even been contentious.  It is encapsulated in a condition required by the Council that the appellant provides what is colloquially known as a "booze bus" or similar to provide safe transportation home from the soon to be expanded hotel for affected patrons, unless Council grants an exemption

The traffic report of Mr Viney, which was before the Court on the appeal, mentioned the possibility of such a facility being provided, and Mr Kevin, who appears for the Council today, is no doubt correct in reminding me that a rival publican from the town said something about facilities he provides.

...

HIS HONOUR:  Mr Cochrane is certainly right that otherwise this topic attracted no attention.  His client is concerned that the proposed condition calls for provision of a "free minibus pick-up/set-down service for patrons", which would require at least the acquisition of a bus and the provision of staff to drive it when required.  There would be a cost involved in that.

Through some miscommunication, the Council were not apprised of today's fixture in time to organise counsel and evidence that might well be called relating to the relevance and/or reasonableness of the condition. 

It occasionally happens that, following a substantive full hearing and publication of reasons by the Court, some new issue emerges which has to be resolved at a mini-hearing.  If condition 3 is to be approved, it may have to be limited in some ways, for example as to how far distance from the hotel patrons can expect to be driven.

I agree with Mr Cochrane that the Court can proceed today under section 4.1.47(2) of the Integrated Planning Act 1997, to authorise the development to start on the basis of the development approval package worked out by the parties, with the exception of condition 3 and, only to the extent to which it may have any relevant impact, condition 33 which contains a reference.

There is no practical reason - and Mr Kevin does not suggest any - why the development should not be allowed to proceed, leaving the appeal on foot for the purpose of a decision being made about this recently emerging contentious issue.  I make an order in terms of the initialled draft.

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