McDonnell Dowell Pty Ltd v Gold Coast City Council

[2012] QPEC 77

[2012] QPEC 77

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2010 of 2012

McCONNELL DOWELL PROPRIETARY LIMITED
ACN 005 761 071

Appellant

and

GOLD COAST CITY COUNCIL

and

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS

Respondent

Co-Respondent

BRISBANE

..DATE 15/11/2012

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 490

Developer appeal on foot - Development allowed to start - construction of bridge piles on riverbanks - respondent Council supportive.

HIS HONOUR: This is an application by a developer for the Court's permission to start part of its development under section 490(3) of the Sustainable Planning Act 2009 notwithstanding that the appeal by it remains to be determined.

Subsection (1) enacts a blanket prohibition against starting a development until an appeal about it is decided or withdrawn.  The appeal has two aspects, one against a refusal, the other against a particular condition.

The development proposal concerns the Gold Coast light rail development.  The Council's concerns relate to crossings of the Nerang River between Surfers Paradise and Southport.  In particular, there are proposed a light rail vehicle bridge on one side of the existing Gold Coast Highway Bridge and a pedestrian cycleway bridge on the other.

There are hydraulic or like issues to do with the effect on the river of the piers proposed to support the light rail vehicle bridge, in particular.  The Council and, I infer, Ms Ayriss' client, the Department of Transport and Main Roads, are supportive of the light rail project and happy to see it go ahead subject to resolution of the still outstanding issues about the river crossing.

Judge Durward has already made an order on 25th of May 2012 which authorised many aspects of the development approved in the Council's decision notice to start.  Works to do with the construction of bridges across the Nerang Rivers and works in line within the area of the old Southport seawall were specifically excluded.

Today's application relates to that exclusion.  It may be accepted that considerations of convenience, expedition and economy exist which would make it desirable for as much work as can be done without compromising the ultimate decision on the important issues causing concern be allowed to start.

All that is sought today is authorisation for the construction of the piles for pier 11 on the northern side and the southern abutment piles to start.  That is not going to affect or permit anything to start in respect of construction of other piles located in the river proper.  The Council is satisfied with the undertakings it has received that, if it becomes appropriate, the appellant will remove works that might be done under the order made today.  It contains requirements that the proposed works be removed and the affected land made good, in the event that construction of the light rail vehicle bridge is not ultimately approved or the construction is approved with a different design not compatible with those works. 

This is an application in its category which will have more effect on the ground, so to speak, than the typical ones which the Court sees under section 490 and its predecessors in earlier legislation; they often involved appeals about money rather than construction.

There are dicta of Keane JA in Woolworths Limited -v- Maryborough Council [2005] 2 Qd R. 203 at paragraph [24] which indicate that care has to be taken in assessing the jurisdictional basis for application of section 490(3), to ensure that it really exists.

The Court must be satisfied "the outcome of the appeal would not be affected if the development or part of the development is started before the appeal was decided".  For reasons expressed by his Honour, where physical works are done it may be problematic whether jurisdiction is established.

Mr Lyons' helpful submissions contain reference to that decision and others including Rauchle -v- Gatton Shire Council [2007] QPELR 602 where the issue was whether a development for a mobile crushing plant ought to be allowed to start. The Court refused authority on a discretionary basis.

Judge Skoien expressed the view that a liberal interpretation and wide application should be given to provisions like section 490(3) in TDD Shafston Pty Ltd -v- Brisbane City Council [2005] QPELR at 150. That's a view that I would respectfully adopt without in any way suggesting that the persuasive dicta of Keane JA should not the respected.

The present application, in my view, doesn't give rise to any concerns which stand in the way of the Court endorsing the cooperative approach to parties have shown to this date.  Mr Lyons has also located another decision of Judge Durward, Riverside Country Estate Pty Ltd -v- Mackay Regional Council 24th of June 2010.

There will be an order in terms of the initialled draft.

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