Nicholson v Fraser Coast Regional Council

[2012] QPEC 62

[2012] QPEC 62

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal Maryborough No 45 of 2008

ROLLO ANDREWS NICHOLSON

and

ANN NICHOLSON

Appellant

Appellant

and

FRASER COAST REGIONAL COUNCIL

Respondent

and

DAVID GODFREY BARROWCLIFFE

Co-Respondent

BRISBANE

..DATE 05/10/2012

..DAY 1

ORDER

CATCHWORDS

Developer appeal against rejection of a development proposal - Council agrees with appellants to support a revised proposal - directions to be made for conduct of appeal following recent joinder of a co-respondent submitter who had not been given notice of the proceeding

HIS HONOUR:  The court adjourns this 2008 appeal to the 19th of October 2012.  It's in a messy state at the present time.  This is attributable to the relevantly late joinder as a party of the co-respondent, Mr Barrowcliffe, who has appeared on today's mention by telephone.

The Council refused the development application which is for multi-unit dwelling on the banks of the river in Maryborough - occasioning this developer appeal.  The appellant failed to notify some or all of the submitters against the proposal of the appeal, which proceeded on the basis that there would be no co-respondents.  Negotiations between the parties saw the Council indicating its preparedness to consent to a revised proposal which the appellants were prepared to formulate.  The court hears that a draft judgment giving effect to that, which would require the court permitting changes, is in preparation but not yet ready.

Mr Barrowcliffe learnt of the appeal.  He is the only one of the submitters, it would seem, prepared to participate in it.  He faces the possibility of being on his own in the proceeding.  He sought an adjournment of a week to consider his position when faced at short notice with a proposed directions schedule which would require experts to meet within the next three weeks and the like.  At this stage he has no experts and would be justified in being concerned that he might be shut out of steps of that kind.

Mr Connor informs the court that when the Council learned of Mr Barrowcliffe's interest it indicated that it would no longer regard itself as bound by the agreement with the appellants, a situation the appellants were said to understand and accept.  The Council will consider afresh what line to take.  There is a possibility of Mr Barrowcliffe persuading the Council to see things his way rather than the appellants', although Mr Connor's remarks in court today might not have given him much hope on that score.  He sought a seven-day adjournment.

Mrs Kefford for the appellants suggested a longer period to permit finalisation of the judgment document alluded to above.  It's sensible to get everything together and accordingly an adjournment to the 19th of October 2012 is ordered.

I strove to make clear to Mr Barrowcliffe that the approval will be decided by the court upon its view of the merits of the revised proposal and not on the basis of disapproval of things the appellants may or may not have done in their application process or since the Council’s decision in conducting this appeal in the way they have.

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