Gold Coast City Council v Clark

[2011] QPEC 60

[2011] QPEC 60

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 38 of 2011

GOLD COAST CITY COUNCIL	Applicant
and
BARRY GRIFFITH CLARK	Respondent

SOUTHPORT

..DATE 12/04/2011

..DAY 1

CATCHWORDS

Sustainable Planning Act 2009 s 456

Where declaration sought by consent of parties that respondent had committed a development offence (with associated restraining orders) - Court should be informed of sufficient circumstances to show the order is appropriate

HIS HONOUR:  Gold Coast City Council v. Clark.

MR RADCLIFF:  Thank you, your Honour.  Your Honour, my name is Radcliff, initials G J.  I'm instructed by Paramount Legal and I appear for the respondent, Barry Griffith Clark.

HIS HONOUR:  Thank you.

MR CHESTERS:  Your Honour, my name is Chesters, initials W R.  And, I am a solicitor with McDonald Balanda and Associates.  We appear for the Gold Coast City Council.

HIS HONOUR:  Thank you.  Yes.  I've been shown a draft order.  I suppose someone's about to hand it up in Court formally.

MR CHESTERS:  Sorry, your Honour.  In that case, I tender a copy of the consent order.

HIS HONOUR: Now, that says it's a consent order. As it seeks - that the court make a declaration under s 456 of the Sustainable Planning Act 2009 that the respondent has committed a development offence with consequential restraining orders, I probably should be told a little bit about what's happening. Is it essentially filling that's caused the issues of the Council?

MR RADCLIFF:  Filling and a lot of other transgressions over a number of years.

HIS HONOUR:  I'd appreciate getting on the record just a summary of what those are.  I'm not asking you to dump on your client, Mr Radcliff, but‑‑‑‑‑

‑‑‑‑‑if the Court's asked to make a declaration, I think I need to know a little bit, enough to show the draft order is appropriate.

MR RADCLIFF:  Your Honour, this was the subject of an application back in 2007 before the Council in‑‑‑‑‑

HIS HONOUR:  Yes.  A development application?

MR RADCLIFF:  A development permit for operation of works and the terms of those operational works I can provide to you.  My client, simply put, just didn't do what was required‑‑‑‑‑

HIS HONOUR:  So, he didn't comply with the conditions, is that it?

MR RADCLIFF:  That's right. 

HIS HONOUR:  So, there's an approval from 2007?

MR RADCLIFF:  There was an approval.  The approval has now lapsed and a new Act of Parliament's come into effect.  I suppose it would be of an advantage to just hand you a copy of the conditions of approval on the last occasion, which will show you what needs to be done.

HIS HONOUR:  All right.  I'll mark those Exhibit 1.

ADMITTED AND MARKED "EXHIBIT 1"

MR RADCLIFFE:  Yes.  So, there was an approval back in 2007.  These were the conditions.  And, those conditions were not met.  The matter has been resolved between the parties on the basis of a consent declaration in terms of what you have before you. 

HIS HONOUR:  I'm just wondering, can you have such a thing as a consent declaration?  My concern is just that the Court ought to have some concept of what it's doing, that's all.

I'm not trying to pry or embarrass either party‑‑‑‑‑

MR RADCLIFF:  Well, in order to make the property being conducted lawfully, my client was given an approval in October 2007.  He was‑‑‑‑‑

HIS HONOUR:  And did that follow issues beforehand?

MR RADCLIFF:  Yes.

HIS HONOUR:  So, it was one of those development applications that the Council forced him to make?

MR RADCLIFF:  Yes.  And, he made it, but then didn't comply with it.

Now, the matter has been resolved between the parties on the basis that my client will now resubmit an application in almost identical terms, but save for compliance with the Sustainable Planning Act.

HIS HONOUR:  Yes.

MR RADCLIFF:  And, thereafter he has a period of time within which to comply with conditions which will be substantially in accordance with the terms that have now just been tendered to you.

HIS HONOUR:  So, the Council wants to make its point essentially by saying, "We told you what you had to do in 2007.  We're sticking with that".

MR RADCLIFF:  That's right.  Now re-lodge and we'll make the same conditions, but you have to deal with them within four months.  Now, the - while I am speaking, I suppose there is a term in the order that there by liberty to apply.  I trust that he would get on with the works.  But, if there is a circumstance such as we had in Brisbane in December and January then of course we'll come back to the Court to say well, we've started it but with other issues have intervened.

HIS HONOUR:  That's fair enough.  Now, I've got to check your date.  Can you pick the Wednesday, Thursday or Friday in the following week instead?

MR RADCLIFF:  Whichever suits the Court's purposes.

HIS HONOUR:  I'm nervous about presuming upon any of the Southport Judges.  I'll make it 17th of August 2011, subject to confirmation by the listed Judge.  So, it may be either the 18th or the 19th in the end.  I've added those words to paragraph 6 of the order, which I'll now initial.  Order as per initialled draft.

MR RADCLIFFE:  Thank you, your Honour.

HIS HONOUR:  I congratulate the parties on resolving it.  At least to this stage.

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