Conquest v Bundaberg Regional Council

[2009] QPEC 130

[2009] QPEC 130

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 64 of 2009

ROBERT CONQUEST AND ANN CONQUEST	Appellant
and
BUNDABERG REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 19/11/2009

ORDER

CATCHWORDS

Application by appellants in late developer appeal for transfer to Brisbane - fears expressed that appellants could not get a just outcome in Bundaberg - premature to deal with change of venue until concurrence agency had been served with notice of the appeal and elected whether to become a party

HIS HONOUR:  I order the appellant to serve notice of the appeal forthwith on the Department of Primary Industries and Fisheries, as a concurrence agency for their development application, and on the Chief Executive of the Department of Infrastructure and Planning, also forthwith.

...

UNIDENTIFIED SPEAKER:  Your Honour, we would ask, though, that the costs of today be reserved.

HIS HONOUR:  This matter is a difficult one for the Court to come to grips with and largely because the appellants are self‑represented.  Mrs Conquest has produced to the Court a Power of Attorney from the other appellant, Mr Conquest, authorising her to represent him.  A copy has been made Exhibit 1.

The background is confusing but it appears that enforcement proceedings of a penal nature are under way in the Magistrates Court in Bundaberg instituted by the Council in respect of building work that has been done without an appropriate permit, in the Council's view.

A development application has been made seeking operational works approval which the Council rejected.  It's the common experience of the Court that where there are enforcement proceedings the local government invites the respondent to regularise problematic development by making a development application.  As I understand it, that's not the situation here in that it was the appellants' idea to deal with their situation in that way.  The Council has rejected the development application and this appeal has been instituted very late.

The decision notice goes back as far as April this year.  The Notice of Appeal was filed only recently.  The first item of relief claimed relates to an extension of time.  There is no material before the Court showing why an extension of time ought to be allowed this particular appeal.

The application in pending proceeding before the Court today seeks a transfer of the appeal to Brisbane.  I find it a little odd that the Bundaberg Registry, where the appeal is, accepted an application returnable in Brisbane today, given that a Judge of the Planning and Environment Court is sitting in Bundaberg.

Mrs Conquest, however, has expressed a lack of confidence in the courts in Bundaberg, likewise, in the Council and others, such as private building certifiers.  She suggests the appellants will not be able to get justice there.  I have made it clear to her that so far as the Planning and Environment Court is concerned, all Judges dealing with Bundaberg matters will be coming from other centres.  Notwithstanding that the respondent has indicated consent to a transfer to Brisbane I'm not sure that for Mrs Conquest for whom a Bundaberg hearing before a Judge whose independence she was satisfied of would not be a lot more convenient.

The venue ought not to be changed nor should anything significant be done in the appeal at this stage because there may be an addition to the parties.

The Department of Primary Industries and Fisheries was a concurrence agency for the purposes of the development application.  That Department hasn't been served with notice of the appeal to afford it an opportunity to join in.  That is really what ought to happen first.

A mention date has been set which would allow that Department and also the Chief Executive of the Department of Infrastructure and Planning (who may already know about the appeal) an opportunity to elect to participate.

That mention will be on the 10th of December 2009 in Brisbane.  The Court's list for next year indicates that Judges with Planning and Environment Court commissions will be sitting in Bundaberg for two weeks commencing the 22nd of February 2010 and for two weeks commencing 15th of March 2010.  It may well be possible to get any substantial hearing organised during one of those times.

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