Hervey Bay (JV) Pty Ltd v Fraser Coast Regional Council

[2011] QPEC 67

[2011] QPEC 67

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 972 of 2011

HERVEY BAY (JV) PTY LTD (ACN 117 304 042)	Applicant
and
FRASER COAST REGIONAL COUNCIL	Respondent
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS	Co-Respondent

BRISBANE

..DATE 06/05/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 367, s 369, s 371, s 376

Permissible change where hydraulic engineers devised improved drainage arrangement - new culverts to be constructed under adjoining State controlled road - Department of Transport and Main Roads agreeable - no requirement to notify owners of 147 of the new lots which had been sold by the developer

HIS HONOUR: The court makes an order in terms of the initialled draft which accedes to a request to change a development approval constituted by a court order made in Appeal 1806 of 2009 pursuant to section 367 of the Sustainable Planning Act 2009. The change, on any reasonable view, is permissible under section 369.

It results from maturer thoughts which the hydraulic consultants to the project developed regarding the most appropriate drainage.  An effect of the changes is to increase the flow of runoff towards a State-controlled road.  That is to be dealt with by the provision of six box culverts underneath the road.  The department supports the change.

The development in other respects is essentially the same.  The changes to the court's order are, in substance, the insertion of a reference to new work of the hydraulic consultants.  There have been some consequential changes to the conditions required by the Chief Executive of the Department of Transport and Main Roads.

The court has given leave to read and file a copy of a document appropriate to constitute notice of the decision which the court is required to give under section 376.

It ought to be noted that there has been no service of the application on the owners of land which is technically affected and no consent obtained from them. For the most part that is because the circumstances are the ones contemplated in the example given under section 371(e).

The development involves production of 715 allotments, 147 of which have already been sold into separate ownership.  There is going to be no significant or noticeable effect for any of those landowners from the change approved by the court's order.  Involving them is unnecessary.

The court has been taken by Mr Lyons to the sole submission received in the public notification when the underlying development application underwent the relevant impact assessment process.  That came from a submitter concerned at the loss of bushland in the area and impacts on the natural environment.  Those concerns have been dealt with in the process leading to the existing approval from the court and are irrelevant today.

Order as per initialled draft.

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