McDonald v Douglas Shire Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

McDonald v Douglas Shire Council [2002] QPEC 019

PARTIES:

JOHN JOSEPH PETER MCDONALD    Applicant
And
DOUGLAS SHIRE COUNCIL                  Respondent

FILE NO/S:

1088 of 2001

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 April 2002

DELIVERED AT:

Brisbane

HEARING DATES:

26 February 2002 & 27 February 2002

JUDGE:

Judge McLauchlan QC

ORDER:

Declaration refused

CATCHWORDS:

COUNSEL:

Mr W Cochrane for the Applicant

Mr D Gore QC and Mr M Rackemann for the Respondent

SOLICITORS:

Macdonnells Solicitors for the Applicant

Willams Graham & Carman for the Respondent

1. This is an application for declarations and/or orders relating to land situated at the corner of Cape Tribulation Road and Turpentine Road in the Shire of Douglas and more particularly described as Lot 177 on RP 840914, Parish of Alexandra, County of Solander. The particular declaration sought pursuant to s.4.1.21(1)(c) of the Integrated Planning Act 1997 is that Town Planning Consent No 484 granted by Douglas Shire Council for a Recreational Resort and Convention Centre on that land is current.

1. The Town Planning consent was notified by the respondent to the applicants on 30 November 1990, during the currency of the respondent’s 1981 Town Planning Scheme.  The relevant planning statute at the time was the Local Government Act 1936.  That Act made no provision for the automatic lapse of a consent, which continued in force unless revoked.

1. On 15 April 1991 the Local Government (Planning and Environment) Act 1990 (the P & E Act) commenced. On 19 May 1993 Building Permit No 5124 was issued by the respondent to Qantec Pty Ltd to construct the buildings necessary for the development of the Resort. In December 1993 Qantec entered into a contract with Emerald Waters Pty Ltd, the owner of the land, to “substantially start” the works required. In 1994 some physical work was done on the site pursuant to that contract. The 15 April 1995 is the fourth anniversary of the commencement of the P & E Act, a date which is relevant because it is accepted that, as a matter of construction of the relevant statutory provisions, the use authorised by the Town Planning Consent was required to have “commenced” by that date if it was not to lapse.

1. In December 1996 the respondent’s present Town Planning Scheme came into force. Under the Planning Scheme, the use of the land for the purpose of a resort development is prohibited, but this provision is now subject to section 6.1.2(3) of the Integrated Planning Act.  On 30 March 1998 the Integrated Planning Act commenced.  The present application was filed in the Court on 9 March 2001.  In September 2001 the display period for the statement of proposals for the new IPA planning scheme ended.

1. The relevant Town Planning Consent takes the form of a letter dated 30 November 1990 from the respondent to Gulban Nominees and Zikos Nominees and records that the relevant appeal to the Local Government Court had been allowed…