Drew v Bundaberg Regional Council

SUPREME COURT OF QUEENSLAND

CITATION:

Drew v Bundaberg Regional Council [2011] QCA 359

PARTIES:

RICHARD DOUGLAS DREW
(applicant)
v
BUNDABERG REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 6299 of 2011
P & E Application No 4038 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

9 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2011

JUDGES:

Margaret McMurdo P, Muir JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY –where the applicant private certifier granted building development approval to land owners for the construction of a shed on their vacant land – where the applicant granted the approval on the basis that the respondent Council’s assessment period of 10 days had expired without the respondent imposing requirements on the land owners – where the respondent Council notified the land owners of its refusal of their application six days after the expiry period – where the primary judge held that the applicant’s building development approval was invalid – where the applicant submitted that the primary judge erred in finding that the application was governed by Table 3.4 of the Burnett Shire Planning Scheme 2006 – where the applicant submitted that Clause 1.12(3) of the Scheme provided for the application to be assessed by the respondent as a concurrence agency – whether the use of the word “Otherwise” in Table 3.4 relevantly meant that the application was impact assessable – whether the primary judge erred in finding that the application was governed by Table 3.4 of the Scheme – whether Clause 1.12(3) was applicable to the application – whether the application for leave to appeal should be granted – whether the appeal should be allowed

Standard Building Regulation 1993 (Qld) (repealed)
Sustainable Planning Act 2009 (Qld), s 498, s 601, s 604
Sustainable Planning Regulation 2009 (Qld), Sch 7

Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203; [1991] FCA 78, cited
Interlego AG & Anor v Croner Trading Pty Ltd (1992) 39 FCR 348; [1992] FCA 624, cited

COUNSEL:

The applicant appeared on his own behalf
M Williamson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Connor O’Meara Solicitors for the respondent

1. MARGARET McMURDO P:  I agree with Muir JA’s reasons for refusing the application for leave to appeal with costs.

1. MUIR JA:  Introduction  The applicant, a private certifier, granted a building approval for the construction of a shed on vacant land owned by Mr and Mrs Loeskow at 6 Seahorse Court, Innes Park on 25 March 2010.  Mr and Mrs Loeskow also owned the adjoining parcel of land on which they resided in a detached dwelling.  On 18 January 2010 Mr and Mrs Loeskow lodged with the Council…