Deepsound Pty Ltd v Maroochy Shire Council

[2009] QPEC 59

[2009] QPEC 59

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 308 of 2006

DEEPSOUND PTY LTD ACN 007 043 932	Appellant
and
MAROOCHY SHIRE COUNCIL	Respondent

MAROOCHYDORE

..DATE 19/06/2009

ORDER

CATCHWORDS

Integrated Planning Act section 3.5.33 - Developer appeal instituted in name of company which made underlying development application - site sold before application decided - purchaser's agent applied for change of conditions - appeal instituted against council's refusal - agent substituted as appellant.

HIS HONOUR: The Court makes an order in terms of the initialled draft which removes the appellant, Deepsound Pty Ltd, from the proceeding under rule 69(1)(a) of the Uniform Civil Procedure Rules 1999, and includes Ken Hicks & Associates Pty Ltd as the appellant pursuant to rule 69(1)(b).

The appeal is against the Council's refusal, in 2006, of an application made by the new appellant for a change of conditions to a development approval which the Council have granted in 2002 under section 3.5.33 of the Integrated Planning Act 1997.

The original development application had been made to the Council by Deepsound Proprietary Limited.  By the time the Council decided it, the land had been sold to a company called Paradise Way Proprietary Limited, which has used Ken Hicks & Associates Proprietary Limited as its agent.

It's clear from material before the Court that in the transaction between the new appellant's client and the appellant, as shown in the record, arrangements were made to ensure that the benefit of Deepsound's development application and any approvals resulting therefrom should belong to the purchaser.  That material obviates some difficulties that could have arisen.

I'm satisfied that the institution of the appeal in the way that happened occurred in good faith, and, doubtless, on an assumption that Deepsound had authorised the use of its name in proceedings.  That may not have been the case, this material before the Court indicating that, having severed its connection with the land many years ago, Deepsound is concerned that, in particular, it might be exposed to costs in some way.

I can understand that the judgment was made that, although Ken Hicks & Associates had applied for conditions to be changed, the appropriate entity to complain when the Council rejected the application for a change of conditions was the original development applicant.  I think that is not the case. 

The Council raises no objection to the proceeding being regularised. Ms Rourke, in support of the application, relies as authority - if any were necessary - on what McPherson JA said in MAM Mortgages Pty Ltd (in liquidation) v Cameron Brothers [2002] QCA 330 particular at paragraph 31. So, order as per initial draft.

…

HIS HONOUR: The Court makes an order in terms of the initial draft, which incorporates as attachment "A", a conditions package appropriate to the changed conditions of development.

The council is pleased to see changes which reduce the number of storeys and the height to bring the development within what's permitted by the new planning scheme, which has come into effect since the making of the development application.

The Court understands that what was contentious between the parties related to infrastructure charges, which are now to be made on a basis thought to be consistent with - to the planning scheme. The Court has no difficulty in making the order as the parties jointly request.

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