Highgate Developments Pty Ltd v Sunshine Coast Regional Council - [2017] QPEC 37

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Highgate Developments Pty Ltd v Sunshine Coast Regional Council [2017] QPEC 37

PARTIES:

HIGHGATE DEVELOPMENTS PTY LTD

(applicant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

FILE NO/S:

34 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

13 April 2017

DELIVERED AT:

Planning and Environment Court, Maroochydore

HEARING DATE:

7 April 2017

JUDGE:

Long SC DCJ

ORDER:

As per draft, to allow the application to make permissible changes to the development approval, granted by order of this Court on 24 June 2016.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION – s 369(1)(d) Sustainable Planning Act 2009 (SPA) – Where the applicant seeks an order be made, in the context of the agreement or consent of the respondent, to allow permissible changes to the development approval, granted by order of this Court on 24 June 2016 – Whether the proposed changes are permissible changes within the meaning of s 367 of the SPA

LEGISLATION:

Sustainable Planning Act 2009 ss 367; 367(1)(c); 369; 369(1)(d); 371; 371(e); 944A

CASES:

Collard v Brisbane City Council [2010] QPEC 39

Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 44

COUNSEL:

R Wallerstein (sol) for the applicant

G Phillips (sol) for the respondent

SOLICITORS:

p&e Law for the applicant

Sunshine Coast Council Legal Services for the respondent

HIS HONOUR: In this matter, the applicant seeks that an order be made, in the context of the agreement or consent of the respondent, that:

“The application to make permissible changes to the judgment of his Honour Judge Robertson, dated 24 June 2016, of that approval is approved in accordance with the amended conditions, referral agency responses and plans attached hereto and marked ‘attachment A’, comprising pages 1-34.”

The proposed or stated premises for that order are that the Court is satisfied that there has been compliance with the requirements of the Sustainable Planning Act 2009 (SPA), with respect to the giving of the notice of originating application for the order, and that the proposed changes for the purposes of section 369 of SPA, are permissible changes.

As to the first matter, there is evidence before the Court as to the service of the originating application and the respondent raises no issue as to compliance with the statutory requirements. In addition and by way of correspondence from a delegate of the Chief Executive of the Department of Infrastructure, Local Government and Planning (see RVW5 to the affidavit of R.V. Wallerstein, filed on 6 April 2017) and provided on the basis, that pursuant to section 944A of SPA, that department is now taken to be the concurrence agency for the development, it is indicated there is no objection to the proposed changes.

As the proposed changes are to an approval granted by the Court, on 17 October 2008 and upon an appeal from the respondent’s refusal of the original development application, this application is made pursuant to section 369(1)(d) of SPA. Changes to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QPEC 37
Decision Date: 13 April 2017

CaseChat Overview and Summary

The case between Highgate Developments Pty Ltd and Sunshine Coast Regional Council was heard in a relevant court, where the applicant sought an order for permissible changes to a development approval. This approval was initially granted by the Court on 24 June 2016, and the applicant aimed to amend this approval in accordance with section 369(1)(d) of the Sustainable Planning Act 2009 (SPA). The crux of the dispute centred on whether the proposed modifications to the development approval qualified as permissible changes under section 367 of the SPA.

The legal issues the court needed to resolve revolved around the interpretation and application of sections 367 and 369(1)(d) of the SPA. Specifically, the court had to determine whether the proposed changes proposed by Highgate Developments Pty Ltd were indeed permissible under the statutory provisions. This involved an examination of the SPA's requirements for permissible changes and whether the applicant had met the necessary criteria to amend the existing development approval.

In reaching its decision, the court meticulously reviewed the statutory framework and the specific provisions of the SPA. The court found that the proposed changes aligned with the legislative intent behind permissible changes, thereby satisfying the conditions set forth in section 367. Consequently, the court concluded that the modifications proposed by Highgate Developments Pty Ltd were permissible under the SPA. As a result, the court allowed the application and made the necessary order to permit the changes to the development approval, as initially granted on 24 June 2016.

Orders

Orders of the court

As per draft, to allow the application to make permissible changes to the development approval, granted by order of this Court on 24 June 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Highgate Developments Pty Ltd v Sunshine Coast Regional Council [2017] QPEC 37
PARTIES:	HIGHGATE DEVELOPMENTS PTY LTD (applicant) v SUNSHINE COAST REGIONAL COUNCIL (respondent)
FILE NO/S:	34 of 2017
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court, Maroochydore
DELIVERED ON:	13 April 2017
DELIVERED AT:	Planning and Environment Court, Maroochydore
HEARING DATE:	7 April 2017
JUDGE:	Long SC DCJ
ORDER:	As per draft, to allow the application to make permissible changes to the development approval, granted by order of this Court on 24 June 2016.
CATCHWORDS:	ENVIRONMENT AND PLANNING – APPLICATION – s 369(1)(d) Sustainable Planning Act 2009 (SPA) – Where the applicant seeks an order be made, in the context of the agreement or consent of the respondent, to allow permissible changes to the development approval, granted by order of this Court on 24 June 2016 – Whether the proposed changes are permissible changes within the meaning of s 367 of the SPA
LEGISLATION:	Sustainable Planning Act 2009 ss 367; 367(1)(c); 369; 369(1)(d); 371; 371(e); 944A
CASES:	Collard v Brisbane City Council [2010] QPEC 39 Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 44
COUNSEL:	R Wallerstein (sol) for the applicant G Phillips (sol) for the respondent
SOLICITORS:	p&e Law for the applicant Sunshine Coast Council Legal Services for the respondent