Lillywhite v Thuringowa City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lillywhite v Thuringowa City Council & Anor [2007] QPEC 105

PARTIES:

REGINALD JOHN LILLYWHITE
Applicant

and

THURINGOWA CITY COUNCIL
Respondent

and

CITIMARK PROPERTIES PTY LTD
ACN 066 613 349
Co-respondent

FILE NO/S:

NoD119 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Application in Pending

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 November 2007

DELIVERED AT:

Brisbane

JUDGE:

Griffin SC DCJ

ORDER:

Application Dismissed

COUNSEL:

Mr D Gore QC (Applicant)

Mr M Hinson SC (Co-Respondent)

Mr B Job (Respondent)

SOLICITORS:

MacDonnells Law (Applicant)

Connor O’Meara (Co-Respondent)

1. This is an application against the Development Permit for a hotel described in a Negotiated Decision Notice dated 9 March 2007 (the 2007 approval).  The same land was the subject of an earlier approval for a shopping centre described in a Negotiated Decision Notice dated 13 October 2005 (the 2005 approval).

1. The issues raised by this application are whether the Development Application resulting in the 2007 approval offends against the rule in relation to piecemeal applications on the basis that the shopping centre approval of 2005 and the hotel approval of 2007 should have been made at the same time.  There is a collateral issue raised by the applicant as to whether the total development which is described as the Deeragun shopping complex may only lawfully be approved by a fresh development application for the composite two developments.

1. There seem to be no real issues of dispute as to the facts amongst the parties. However it is necessary to set out in some little detail the chronology of events relevant to this application to understand that argument advanced by the applicant which is as to the alleged piecemeal nature of two separate Development Applications.

1. I note that the Integrated Planning Act 1997 (the "IPA") does not enshrine any "piecemeal principle" in the legislation although it is clear enough that that principle has been applied within this jurisdiction.

Factual issues

1. There presently exist two separate Development Approvals over the same land for what are apparently two separate uses.  As at the date of hearing neither approval had yet been acted upon.  The co-existence therefore of two separate Development Approvals over the same land will be a relevant consideration in the application of the appropriate principles in this appeal.

1. The 2005 approval related to land with frontages to the Bruce Highway, Wagner Street and Innes Drive, Deeragun.  Drawings disclosed that what was approved was a supermarket, speciality stores, two fast food outlets, and areas of car parking.  The second application for two hotel buildings made reference in a planning report to "the proposed development is considered appropriate for the site and will capitalise on its intended use as a shopping centre . . ." and further "it has been designed so as to integrate with the existing approval for the shopping centre on the site."

1. The site plan which accompanied the second application (DAO3P1) described two hotel buildings one of which was sited where one of…