Firefast Pty Ltd v Ipswich City Council

[2006] QPEC 76

[2006] QPEC 076

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1839 of 2006

FIREFAST PTY LTD (ACN 010 859 793)	Applicant
and
IPSWICH CITY COUNCIL	Respondent
and
JOHN EDWARDS & JENNY WILLARD	First Co-Respondent by Election
and
GARY SELWYN LUKRITZ & VICKI MAREE LUKRITZ	Second Co-Respondent by Election
and
RON MURRAY & JENNY MURRAY	Third Co-Respondent by Election

BRISBANE

..DATE 10/07/2006

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.33 - condition of approval of a material change of use contained in an order of the Court resolving an earlier appeal changed so that the 2 year period allowed runs from actual commencement of the use rather than from the date of the order.

HIS HONOUR: This is an application under s 3.5.33(2) of the Integrated Planning Act 1997 to change a condition of a development approval contained in an order made by Judge Wilson on the 12th of July 2004 in Appeal 129 of 2004. A sizeable sub-division was involved but the change of condition sought relates to a development permit for a general store, which Mr Nicholls confirms is to be located in an existing house.

The approval in condition 27 stated that "The development approval for a general store is valid for two years from the date this approval takes effect", being the date of the order. The two years are about to run out. As things have turned out, construction for the general store activity did not occur as expeditiously as was anticipated and may even now not be complete. It is said there have been difficulties in obtaining permits for operational works. What is sought is that the development permit last mentioned be declared to run for two years from the commencement of the use. I have had some concern that it might be important to get that date, which still lies in the future, identified for purposes of future reference. As Mr Nicholls says, it is probably going to be easy enough to identify when a general store opens for business. The currently binding Court decisions about commencement of uses indicate, contrary to earlier authority, that the commencement of a use such as that in question here occurs only when that particular use is actually implemented, rather than when some preparatory steps are undertaken. See McDonald v Douglas Shire Council [2004] 1 QdR 131. I have resiled from my enthusiasm for requiring some means of identification to be incorporated in the Court's order.

In my opinion, commonsense and ordinary considerations of fairness dictate the Court's taking a sympathetic approach to the applicant's having an opportunity to carry out the use in the absence of special circumstances indicating that the indulgence of further time should be withheld as in the case of Reynolds v Redlands Shire Council [2001] QPELR 184.

The co-respondents are limited to three couples, they being the adverse submitters who participated in the proceeding concluded before Judge Wilson. Mr Nicholls has placed before the Court all of the submissions which were made prior to the original development approval. They include material from additional concerned people objecting that the general store activity would lead to rubbish being left in the area and might attract some undesirable people there "boaties" being instanced, along with a concern that there were no toilet facilities and the like. Mr Nicholls relies on Australian Conservation Foundation Gold Coast Inc. v. Gold Coast City Council [2001] QPELR 96 as establishing that only those joined as co-respondents in this application had to be served with it.

None of those people has appeared when called this morning.  Service has been effected.  There has been positive advice from the Willards that they do not wish to participate.  The local government consents to the application.

Having considered in a general way the things the Court's required to consider under section 3.5.33(7) of the Integrated Planning Act 1997, in particular in paragraphs (a) and (b), I can see no reason for the Court's withholding the relief that's sought. In respect of the proposition that the Court should not proceed on the basis that further assessable development would arise from the change - see section 3.5.33(1)(b) - Mr Nicholls has pointed to the practical approach taken in cases such as Rhema Management Services Pty Ltd v Noosa Shire Council [2000] QPELR 15 at 16 and Rose Bay Developments Proprietary Limited v Bowen Shire Council [2001] QPELR 340 at 342G-I.

He also reminded the Court of the contrary outcome in Hayday Pty Ltd v the Brisbane City Council [2005] QPEC 050 adopting the practical approach. The affidavit of Mr S.R. Smith justifies the determination sought in the circumstances that there is no further assessable development concerned here.
cf. Martin v Whitsunday Shire Council [2001] QPELR 348 at 350. Here, there is no change whatever to the applicant's proposal. It is merely a case of the approved use commencing (and then running for a period now set at 2 years) at a later time.

There will be an order in terms of the initialled draft.

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