Maher v Hervey Bay City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Maher v Hervey Bay City Council & Anor [2008] QPEC 123

PARTIES:

PETER and SOFIA MAHER

(Appellants)

v

HERVEY BAY CITY COUNCIL

(Respondent)

and

GRAHAM JENNINGS

(Co-Respondent)

FILE NO/S:

3079 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

2 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2008

JUDGE:

Judge Searles DCJ

ORDER:

THE APPEAL IS DISMISSED.

COUNSEL:

M. Hinson SC – Appellant

M. Williamson - Respondent

SOLICITORS:

Carswell and Company – Appellant

Connor O’Meara Solicitors - Respondent

1. This is an appeal against the Council’s failure to decide a development application for a development permit for a material change of use on land described as Lot 1 on RP 230593 situated at 233 Charlton Esplanade, Pialba, Hervey Bay, Queensland. The proposed development is for holiday accommodation which will include 52 residential units being a mix of 1 and 2 bedroom units, recreational facilities including a gym, sauna and swimming pool, basement car parking for 64 cars with vehicular access via Hythe Street.  The Co-Respondent did not take part in the appeal.

1. An important time line is:

No	Date	Event
1	22 December 2004	Application made to Council
2	18 March 2005 – 14 April 2005	Public notification of application
3	April 2005	Council’s 2006 IPA Scheme publicly notified
4	13 April 2005	Expiration of decision making period and point of accrual to Appellants of right to appeal on the grounds of a deemed refusal.
5	18 October 2006	Appeal filed under s 4.1.27 of Integrated Planning Act 1997 (IPA) against the Council’s failure to decide the application
6	27 November 2006	Council notification to Appellants of its reasons for opposing the development application
7	15 December 2006	Council adopted its IPA Planning Scheme replacing its 1996 Transitional Planning Scheme

There is a more detailed chronology set out in Exhibit 7 detailing all relevant steps but the above are the important ones.

1. As can be seen, both the application was lodged and the present appeal commenced before the introduction of the Council’s 2006 IPA Planning Scheme[1] 2006 Scheme which replaced the 1996 Hervey Bay City Transitional Planning Scheme[2] (1996 Scheme).  Further, the 2006 Scheme was publicly notified in April 2005, some four months following the lodgement of the application and was adopted on 15 December 2006 two months after the filing of this appeal on 18 October 2006.  The appeal was filed some 15 months after the right of appeal accrued at the expiration of the decision making period on 13 July 2005.  Eighty-eight submissions including a petition were received objecting to the proposal.

   [1]Exhibit 9.

   [2]Exhibit 8.

1. As the application was made when the now superseded 1996 Scheme  was in force, it falls to be decided under s 4.13(5) and (5A) of the repealed Local Government (Planning and Environment) Act 1990 (PEA).[3]  Under that scheme the land was:-

(a)In the Urban Residential preferred dominant land use designation under the Strategic Plan;

(b)In the Residential Medium Density zone;…