Pagerose Pty Ltd v Gympie Regional Council

[2013] QPEC 66

[2013] QPEC 66

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2638 of 2013

PAGEROSE PTY LTD  Applicant

and

GYMPIE REGIONAL COUNCIL and ANOTHER     Respondent

BRISBANE

9.40 AM, FRIDAY, 20 SEPTEMBER 2013

JUDGMENT

CATCHWORDS

Non-compliance with Act where developer sought from the Council rather than the Court extension of the “relevant period” (currency period) where the council purported to grant - minor redesign to increase lot yield from 91 to 108 held “permissible change”

Sustainable Planning Act 2009 s367, s369 s440

HIS HONOUR: The court makes an order in terms of the initialled draft. It relieves the applicant developer under section 440 of the Sustainable Planning Act 2009 from non-compliance constituted by its having approached the incorrect entity for purposes of section 369 to achieve a change to its development approval as it would be implemented on the ground and also to obtain an extension of the relevant period, formerly known as the currency period. The development approval is constituted by an order of the court of 6^th of September 2007.  The approval has already been changed in some details once by the court.  Regrettably, when the developer appreciated that further time was needed, application was made not to the Court but to the Council, which obliged by granting a two year extension to the 6^th of September 2013. 

The State authority concerned, which is the second respondent, was left out of the loop.  Mr Cronin for the applicant has tendered correspondence from the Department indicating its being content with the change proposed.  It would seem to be implicit in that, that the Department is content with extension of the relevant period which is necessarily required, if anything is to happen.  Service of the application and supporting materials on the Department, subsequent to their letter, has been established, and no interest has been shown in the Departments participating.

The overall development, a reconfiguration of 1 and 2, 91 has been implemented so far as early stages are concerned and as Mr Cronin says, a good deal of the work has been done preparatory to completing the later stages. These are circumstances in which it is appropriate for the court to under s 440 and excuse the adoption of the wrong procedure.

Redesign, which is rather difficult to understand from looking at the approved and now proposed plans, has increased the lot yield from 91, originally, to 108, now. To a limited extent, that is achieved by incursions into forested terrain on the site. There’s no difference to the road pattern proposed. In modern conditions, I think the court ought to be inclined to look favourably on changes that provide additional opportunities for residents to find places to live in South East Queensland. The tests for permissible change within section 367 of the Act are comfortably satisfied in my view. Accordingly, the orders sought ought to be made – order as per draft.

MR CRONIN:   Can I just mention one thing I didn’t say but it’s in my submissions, that the effect of the amended conditions extends the approval to the 3^rd of September 2015.

HIS HONOUR:   Well, you’re getting two years longer.

MR CRONIN:   Yes.  Two years.  Yes.

HIS HONOUR:   Yes.  All right.  I’d like that – I’d like these reasons transcribed and also Mr Cronin’s last intervention.  Thank you.

MR CRONIN:   Thank you, your Honour.

MR BATTY:   Thank you, your Honour.

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