Graf v Cairns City Council

[2003] QPEC 74

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Graf v Cairns City Council & Anor [2003] QPEC 074
PARTIES:	BERNHARD GRAF (Appellant) v CAIRNS CITY COUNCIL (Respondent) STATE OF QUEENSLAND (Co-respondent)
FILE NO/S:	209 of 2003 210 of 2003
DIVISION:
PROCEEDING:
ORIGINATING COURT:	Planning & Environment Court, Cairns
DELIVERED ON:	6 October 2003
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr D Morzone for the appellant Mr W Cochrane for the respondent
SOLICITORS:	Marino Moller Lawyers for the appellant MacDonnells Solicitors for the respondent Crown Law for the co-respondent

1. These two appeals relate to Lots 1 and 2 on SP 15207 Parish of Smithfield County of Nares located on the Captain Cook Highway at Palm Cove.  Appeal 209 of 2003 arises out of an application for preliminary approval of a reconfiguration of the two allotments to create two new allotments.  Appeal No. 210 of 2003 relates to an application for development approval for reconfiguration of the subject land into 27 allotments.  By negotiated decision notices dated 4 June 2003 the respondent approved both applications subject to a comprehensive set of conditions imposed by the respondent and a comprehensive set of conditions imposed by the co-respondent as a concurrence agency through the Department of Main Roads.  In each case the appellants appeals against certain of those conditions.  The two applications currently before the Court involve conventional preliminary directions determining the adequacy of notices and a timetable for preparation for the hearing of the appeals.  It is not disputed that the appeals should be heard together.  None of these matters are particularly contentious.

1. In Appeal 210 of 2003 the appellant also applies for the following order –

Pursuant to s 4.1.47(2) of the Integrated Planning Act 1997 the development may start before the appeal is decided including making any applications for and obtaining approvals relevant to works undertaken.

It is this order which is in substantial dispute. 

1. The conditions appealed against need not be set out in full detail.  Essentially they are as follows:-

1.          The provision of a 10 m wide buffer strip along the full frontage of the site to the Captain Cook Highway and the provision of a landscaped earth mound approximately 2 m in height. 

2.          The provision of a link road from a proposed internal road to the northern boundary of the subject land to connect with a similar road on an apparently proposed similar development on land to the north.

1. The argument that the development can proceed prior to the determination of the appeal is essentially set out in the affidavit of the appellant’s town planning consultant, Peter Robinson, filed on 5 September 2003.  I frankly concede that there is substance to what Mr Robinson says on the material before me.  However, there are two aspects of the matter which concern me.  Firstly, the respondent complains that it has not had time to adequately respond to the application.  The application was filed on 5 September 2003 and came on for hearing on 12 September 2003.  The solicitor for the respondent who has had the personal carriage of the appeals was absent from her office during the time between the service of the application and the date for hearing.  The appellant has already lodged an application for operational works in respect of the proposed development and it appears that the appropriate officers of the respondent council are considering that application.  Whilst I am sympathetic to the desire of the appellant to proceed with the development as soon as possible, particularly in light of the fact that he already has approval it appears that some useful work has been done in advancing the development.  I am not satisfied that there is any evidence upon which I can conclude that the appropriate officers of the respondent are being obstructive or delaying in dealing with the assessment of the operational works application.  One of the difficulties in a case like this is that sometimes a respondent to an application may not be able to properly articulate the need for further time to respond to an application unless there is sufficient time to do so in the first place.

1. My ultimate conclusion is that based upon the material before me I am not satisfied that the order permitting the development to proceed appending the appeal should be allowed.  One alternative would be to simply adjourn the application as requested by the respondent, give directions as to the further conduct of the application and hear it at some subsequent time.  It seems to me that it would be more desirable and to the benefit of all the parties as well as the productive use of court time to simply expedite the hearing of the appeals rather than to have the appeals and this application proceeding in parallel.  I have made arrangements with the Registrar in Cairns for a change of calendar and I will allocate 27 and 28 November 2003 as fixed dates for the hearing of these two appeals.  I will give the parties the opportunity to agree upon the appropriate pre-trial timetable and directions for preparation for hearing.