Hydrox Nominees Pty Ltd v Brisbane City Council

[2014] QPEC 65

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hydrox Nominees Pty Ltd v Brisbane City Council [2014] QPEC 65

PARTIES:

HYDROX NOMINEES PTY LTD
(applicant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

3904/14

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court at Brisbane

DELIVERED ON:

19 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2014

JUDGE:

Everson DCJ

ORDER:

1.   I decline to make the declaration

2.   I make the orders in paragraphs 2 to 8 inclusive of the draft order

CATCHWORDS:

ENVIRONMENT AND PLANNING – DECLARATION – UTILITY OF DECLARATON - where there is no contradictor in respect of the declarations sought - whether there is sufficient utility to justify making the declaration.

Renard Partners Pty Ltd & Anor v Quinn Villages Pty Ltd [2001] QCA 538, distinguished

COUNSEL:

Mr Hughes QC and Mr Williamson for the applicant

Mr Trotter for the respondent

SOLICITORS:

Connor O’Meara for the applicant

Brisbane City Legal Practice for the respondent

1. This is an originating application which seeks declarations and orders relating to the proper level of assessment pursuant to the respondent's planning scheme of an application for the making of material change of use of premises for Centre Activities (Shop and Restaurant), and a preliminary approval for building work for Centre Activities (Shop and Restaurant) in respect of land at 48 Creek Road, Mount Gravatt East. 

1. The development the subject of the application is for a large format home improvements store, described as a Masters Home Improvement Store.  It has a gross floor area of 13,015 square metres. 

1. On 16 July 2014 the respondent issued an acknowledgement notice which stated that the application will be assessed using "code assessment procedures".  Subsequently, on 12 September 2014, the respondent purported to issue a new acknowledgement notice in circumstances where it was asserted that the development application would be assessed using "impact assessment procedures".  The originating application sought declarations that the development in question was code assessable and that the purported second acknowledgement notice issued on 12 September 2014 was invalid and of no effect. 

1. After receiving and considering the applicant's material, the respondent has elected not to oppose the relief sought by the applicant in this proceeding.  A draft judgment has been handed to me which provides for orders allowing the application and setting aside the second acknowledgement notice, dated 12 September 2014.  Relevantly, it also provides for an order that the respondent's initial acknowledgement notice, dated 16 July 2014, is confirmed.  The only issue for determination by me is whether the court ought to make a declaration which is now sought by the applicant in the draft judgment that the development application is subject to code assessment. 

1. In the written submissions on behalf of the applicant, which are exhibit 1 before me, the applicant concedes that it is uncontroversial as between the parties that if the use applied for by the applicant is in the terms sought by the applicant, it triggers the need for a code assessable application pursuant to the respondent's planning scheme.  In consenting to the orders in the draft judgment the respondent impliedly and of necessity, concedes that the development application is, in fact, code assessable because this is what the initial acknowledgement notice, dated 16 July 2014 states. 

1. Despite these concessions by the respondent and, therefore, the lack of a contradictor in respect of the declaration sought, the applicant nonetheless submits that the making of the declaration has utility to resolve issues which have arisen between the parties concerning the level of assessment of the development application.  In his oral submissions on behalf of the applicant, Mr Hughes QC submits that the declaration sought has utility in determining in a manner binding between the parties, the level of assessment for the development application and in ensuring that the IDAS process continues on an appropriate basis and, further, that it resolves the status of the second acknowledgement notice. 

1. In consenting to the orders sought by the applicant, however, the respondent concedes that the level of assessment must of necessity be code assessment having regard to the confirmation of the first acknowledgement notice, dated 16 July 2014 and the setting aside of the second acknowledgement notice dated 29 September 2014.  It is difficult to conceive how the IDAS process would continue on any other basis in these circumstances.  The orders resolve the status of the second acknowledgement notice by stating that it is set aside.  Unlike in Renard Partners Pty Ltd & Anor v Quinn Villages Pty Ltd [2001] QCA 538 at [12] it is difficult to conceive how the making of the declaration sought can narrow the potential range of the dispute between the parties, given that the orders referred to above are not opposed by the respondent.

1. In the circumstances, it has not been demonstrated to me that there is sufficient utility to justify the making of the declaration. 

1. In the exercise of my discretion, I therefore decline to make the declaration but make the orders in paragraphs 2 to 8 inclusive of the draft.  I therefore amend the draft accordingly and I initial it and place it with the papers.