Mofo Group Pty Ltd v Conics (Sunshine Coast) Pty Ltd

[2010] QPEC 78

[2010] QPEC 78

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 593 of 2010

MOFO GROUP PTY LTD	Applicant
and
CONICS (SUNSHINE COAST) PTY LTD - OTHERS	Respondents

BRISBANE

..DATE 17/03/2010

ORDER

CATCHWORDS

Integrated Planning Act 1997, s 3.5.19, s 3.5.24, s 3.5.28, s 3.5.33

Originating application by the maker of a development application to establish entitlement to the benefit of the resulting development approval and the inability of others (not being the owner of the land) to request (or the Council to determine) that the approval be changed, also injunctive relief to restrain implementation of the original or changed approval - directions given that the applicant plead its case to permit the respondents to decide whether to seek striking out

HIS HONOUR:  The court has made an order requiring the

applicant to file and serve on the other parties within 21

days points of claim setting out all relevant facts and

contentions.  A further mention for 23 April 2010 has been

ordered and costs are reserved.

In this most unusual situation confronting the court, the

applicant used the services of an entity known as Conics

Queensland, which may well be related to the second

respondent, Conics (Sunshine Coast), to make a development

application in respect of land which it had under contract as

purchaser.

The respondent Council approved the application but the

purchase transaction was never completed subsequently.  Under

section 3.5.28 of the Integrated Planning Act 1997, the

development approval runs with the land, it having taken

effect under section 3.5.19.

The second respondent, Conics (Sunshine Coast), on behalf of

the third respondent, Vantage Holdings, which it seems never

came to own or have the site under contract as purchaser,

requested the Council to change the approval under section

3.5.24.  The Council acceded to that application, giving rise

to a new development approval to run with the land, or “attach

to” it, as section 3.5.28 says.

The applicant seeks a declaration that it is entitled to the

benefit of the approval obtained at its instance, the terms of
which may be found in a Negotiated Decision Notice dated 20th

of January 2009, on the basis of its having been the applicant, as the term is used in the IPA and also in the Sustainable Planning Act of 2009.

There is sought a declaration that the second and third

respondents were not entitled or authorised to make

application to Council to change that approval.  A declaration

is sought that the Council wasn't empowered to consider that

application to change and that the relevant decision notice of

the 1st December 2009 is null and void.

An injunction is sought preventing Vantage Holdings and

the fourth respondent from proceeding to act in reliance on

the subject development permit.  The fourth respondent,

represented by Mr Crane, succeeded in purchasing the site and

becoming the registered proprietor.  They had to come up with

a sum in excess of $2 million.  Mr Crane has told the court

that his client's purchase was on the basis that the approvals

mentioned would run with the land and be available for

exploitation by Kinabulu Holdings.

The notion underlying the applicant's claims may be that which

finds some support in the Court of Appeal decision in

Sushames [2007] 1 Qd R 382. It acknowledges the entitlement

of the maker of a development application to retain some control over the application.  There may well be commercial advantages to an entity able to do this by way of gaining some

recompense from others for the trouble and cost it has gone to.

What the other parties say has changed is that this matter has

proceeded beyond the stage of an application to the stage of

development approvals, which effectively change the law

respecting what may be done with the relevant parcels of land.

They, and Mr MacNaughton's client, the second respondent, in

particular, want time to determine whether or not an

application ought to be made to strike out the present

application.  That requires a full understanding of the basis

on which it is brought.  They and Mr MacNaughton, in

particular, objected to the making of the conventional

directions ordered today, which would require the parties to

go to a good deal of trouble preparing this matter for

hearing.  They again, Mr MacNaughton's client in particular,

don't wish to be put to the trouble of applying and incurring

expense in respect of directions.

The best resolution of the matter is, it seemed to me, to

accede to Mr MacNaughton's request that, effectively, the

matter go to pleadings, once the applicant's points of claim

are available.  Then the respondents, without having been put

to too much expense, are in a position to make a judgment as

to what they will do.  It may well be that the applicant has

genuine grounds for complaint and redress, for example, if its

intellectual property has been unjustifiably appropriated and

dealt with by others in some way.  It is an interesting

question, whether this court has jurisdiction to consider

things on such a basis or not, but it's an interesting

question that may arise in the future.