Grant v Pine Rivers Shire Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Harridan Pty Ltd v Redland Shire Council [2008] QPEC 81

PARTIES:

HARRIDAN PTY LTD

(Appellant)

v

REDLAND SHIRE COUNCIL

(Respondent)

And

CHIEF EXECUTIVE OF THE DEPARTMENT OF MAIN ROADS

(Co-respondent by election)

FILE NO/S:

1034 of 2008

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2008 with further written submissions received to 26 August 2008

JUDGE:

Rackemann DCJ

ORDER:

The application in pending proceeding is dismissed.

CATCHWORDS:

Development application made on the day before a new planning scheme took effect, but after its adoption – whether development application (superseded planning scheme) – whether application can now be changed and be a development application (superseded planning scheme)

COUNSEL:

Mr Haydon of counsel appeared for the appellant

Mr Ure of counsel appeared for the respondent

SOLICITORS:

Mullins & Mullins for the appellants

HL Ebsworth for the respondents

1. This is an applicant appeal against the council’s decision to grant a preliminary approval, rather than a development permit, in response to a development application.  By an application in pending proceedings, the appellant seeks the determination of a dispute as to whether the application was a development application (superseded planning scheme).  The determination of that issue will affect how the application is to be assessed.  The application seeks the following orders:

“1.1     An order or declaration that section 4.1.52(3)(b) applies to the hearing of this appeal; and/or

1.2     A declaration that development application number SB005137:MC009618 lodged with the Respondent on 29 March 2006 and properly made on 3 April 2006 was a development application (superseded planning scheme) (“DASPS”); and/or

1.3   A declaration that development application number SB005137:MC009618 lodged with the Respondent on 29 March 2006 was accepted by the respondent through two acknowledgement notices to be a development application (superseded planning scheme) (“DASPS”); and/or

1.4   A order [sic] that the development application number SB005137:MC009618 lodged with the Respondent on 29 March 2006 be amended to be a development application (superseded planning scheme ) (“DASPS”) and that the amendment is a minor change; and/or

1.5   Such further or other declarations and orders as this Honourable Court shall think fit.”

1. The development application was made on 29 March 2006.  On that day the 1988 Redland Shire Council Planning Scheme, being a transitional planning scheme, was in force.  The council had also, on 15 March 2006, adopted a new planning scheme (the 2006 Planning Scheme), but that did not come into force until 30 March 2006, being the day after the application was made.

1. The development application required impact assessment.  Section 3.5.5 of the IPA requires impact assessment to be carried out having regard to “the planning scheme and any other relevant local planning instruments”.  By reason of s 3.5.3, that is taken to be a reference to the planning scheme (and other relevant local planning instruments) which was in effect when the application was made.  Section 3.5.6 provides that weight may be given to any planning instrument, law or…