Hudson v Bundaberg Regional Council; and Loeskow v Bundaberg Regional Council
[2013] QPEC 43
•19 August 2013
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Hudson -v- Bundaberg Regional Council; and Loeskow -v- Bundaberg Regional Council [2013] QPEC 43
PARTIES:
1/10
2/10
PAUL HUDSON AND JANE NORTON
(appellant)
-v-
BUNDABERG REGIONAL COUNCIL (respondent)
AND
CURRY & WILSON PTY LTD (co-respondent)
WILLIAM GEORGE LOESKOW (appellant)
-v-
BUNDABERG REGIONAL COUNCIL (respondent)
AND
CURRY & WILSON PTY LTD (co-respondent)
FILE NO/S:
BD 1 of 2010
BD 2 of 2010
DIVISION:
Planning and Environment Court
ORIGINATING COURT:
Brisbane
DELIVERED ON:
19 August 2013
DELIVERED AT:
Brisbane
HEARING DATE:
19 August 2013
JUDGE:
Rackemann DCJ
SOLICITORS:
Payne Butler Lang for the appellants in each matter
Baker O’Brien Toll for the respondent
MRH Lawyers for the co-respondent
In this matter there has been a resolution, but there is no affidavit material before me to prove compliance with proper service of the appeal. I am informed that there were two concurrence agencies, the Department of Main Roads and the Department of Transport. That means that the people who should have been served included the Council and the developer each of which has been served and are parties and don’t complain, in any respect, about service. The other parties which should have been served are the Department of Main Roads, Queensland Transport and the Chief Executive of the Department of Infrastructure and Planning.
Insofar as service on the Chief Executive is concerned, a search conducted today in court by Mr Marles, the solicitor for the developer, shows that according to the department’s website, they have been served with at least one of the appeals. Although he couldn’t find a reference to the other appeal, both are appeals that raise the same issue and it’s likely that the department received both and, in particular, it’s very unlikely that, having decided not to elect to one they would have elected to the other.
Insofar as the Department of Main Roads and the Department of Transport are concerned, the issues in the appeal have nothing to do with their referral jurisdiction. None of their responses to the application are affected, in any way, by the outcome of the appeal. To the extent to which service hasn’t been properly proved, it seems to me that this is a rare case in which that would be appropriate for service to be excused under section 440 of the Act.
Accordingly, I am directing that it be taken that the proceedings were correctly notified and I will make orders by consent which allow each appeal and order that the development application be approved subject to amended conditions, that is, that in condition 1, the words “generally in accordance with” be inserted after the words “notice and” and in condition 40(ii)(a) in the third line after the word “rev A” insert “as amended by drawings numbered 41-18932-C008A and 41-18932-C009A (but such that the approval remains for a total of 335 units)”.
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