Mackay Regional Council v Absolon
[2012] QPEC 60
•28/09/2012
[2012] QPEC 60
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 1182 of 2012
| MACKAY REGIONAL COUNCIL | Applicant |
| and | |
| MARK ABSOLON AND TRACEY ABSOLON | Respondents |
BRISBANE
..DATE 28/09/2012
ORDER
CATCHWORDS
Sustainable Planning Act 2009 s 272, s 273, s 357, s 440
Directions hearing in Council's enforcement proceeding in respect of alleged unlawful filling - important that proceeding advance expeditiously - respondents' development application for an approval to "regularise" the filling lapsed because of their failure to inform referral agencies - Council and some referral agencies encourage the court to make orders so that the development application may proceed to determination in the interest of avoiding delay - court does so on basis the referral agencies whose position is unknown have liberty to apply
HIS HONOUR: The court is proceeding in an unusual way today in an enforcement proceeding brought by the Council in respect of filling that it contends has occurred unlawfully.
In the way which has become traditional the respondents have lodged with the Council a development application seeking to regularise what they have done. That application has lapsed by virtue of section 273 of the Sustainable Planning Act 2009, the respondents not having done what was required by way of providing the material referred to in section 272 to the four referral agencies identified in the Council's acknowledgement notice of 1st of June 2012.
The lapsing is an unwelcome development from the point of view of the Council, which apprehends that the consequence is likely to be the respondents making a further development application requiring assessment and necessarily producing further delay in this matter being resolved.
The Council's representative indicates to the court that the Council has serious concerns about the situation on the ground given its view of the risk posed by the filling that's been done.
In the interests of avoiding further delay, the Council's strong preference is to have the existing development application revived - something the court may do in appropriate circumstances under section 440 rather than await a new development application.
Of the four referral agencies, two have indicated their contentment with the court proceeding under section 440, see Exhibits 1 and 2.
As far as the others are concerned, they, now having a common representation (albeit not one in the court) by "Permit and Licence Management", have advanced the view that section 357 and following sections provide a possible useful solution. The council take a contrary view.
Permit and Licence Management are not yet in a position to form a view as to what approach departments or chief executives they represent might take under section 440, having suggested they'll need until Wednesday or Thursday next week to come up with a response. That delay is concerning to the respondents, I suppose, but it seems even more concerning to the Council.
This is not the usual situation encountered by the court, at least in my experience, in which lapsing points are likely to be taken by councils.
The material before the court includes a communication dated 28th of August 2012 from the delegate of the chief executive of the Department of Natural Resources and Mines and the Department of Environment and Heritage Protection headed, “Notice application lapsed” and referring to section 273.
Nonetheless, I think it appropriate for court particularly in view of the provisions in sections 4 and 5 of the Act to proceed today rather than adjourn for a week, which was the alternative. It may seem precipitate to proceed in this way in the absence of any formal application by the respondents. I can't see why the court ought not to act on the oral application Mr Lyons has made today.
It's appropriate that the order contain specific acknowledgement of the entitlement of the two Government entities which have sought more time to approach the court within that time - on the assumption that they'll be advised forthwith of what happens today - to seek to have the court's order varied. That's the ordinary entitlement of anyone in whose absence an order is made that affects their interests.
The orders are:
The court finds that the respondents have failed to
comply with s 272 of the Sustainable Planning Act 2009 in respect of their Development Application OW-2012-43 the subject of the applicant Council’s Acknowledgment Notice dated 01.06.2012 in not providing the Referral Agencies identified in the Notice with the material required in a timely way by reason of which the Application lapsed under s 273.
The court orders pursuant to s 440 of the Act that
notwithstanding the lapsing the Development Application remain on foot but be returned to the beginning of the Information and Referral Stage [of the IDAS process] so that the requirements of s 272 may be met and the applicant Council may when convenient issue an Information Request.
Liberty to the Department of Environment and Heritage
Protection and the Department of Natural Resources and Mines or the Chief Executives of them (being among the Referral Agencies) to apply on or before 5 October 2012 for variation of the preceding order [number 2].
List for mention 2 November 2012.
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