Reid v Gladstone Regional Council

[2011] QPEC 8

[2011] QPEC 8

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3711 of 2010

BRIAN ALEXANDER REID	Applicant
and
GLADSTONE REGIONAL COUNCIL & ORS	Respondent

P & E Appeal No 2670 of 2009

BRIAN ALEXANDER REID                 Appellant

and

GLADSTONE REGIONAL COUNCIL & ANOR     Respondent

BRISBANE

..DATE 17/02/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 818(2), s 820

Appeal against Council refusal to extend currency period of a development approval permitting reconfiguration - combination of errors led to overlooking of Department of Transport and Main Roads as a concurrence agency - originating application by appellant (successor in title to the original applicant for reconfiguration) to avoid complication in the appeal by identifying the non-compliance and the making of ameliorating orders

HIS HONOUR:  The Court makes an order in terms of the initialled draft in originating application 3711 of 2010.

The purpose of the application is to regularise a development approval granted by the predecessor of the respondent Council in 2005 to permit reconfiguration of a rural allotment into two.

What was happening was the separation of the access-giving handle of a battleaxe block from the large, squarish section of the rural block away from the road, which happens to be a State-controlled road, Tableland Road, in Mount Maria.

The plan was to take access from Kirkpatrick Road, which is a small rural road adjoining Tableland Road at an acute angle to the north of the site.

A development application was made by Mr and Mrs Tyrell.  The land was subsequently sold to Mr Reid, the applicant, who is also the appellant in 2670 of 2009.  That appeal is against the Council's refusal to extend the currency period in respect of the 2005 approval.

Investigation of matters in the appeal led to the discovery that back in 2005 the then emanation of the third respondent's Department, which is currently the Department of Transport and Main Roads, was not involved as a concurrence agency as ought to have been the case, given that Tableland Road is a State-controlled road.

In the referrals checklist, which forms part of the IDAS forms used in 2005, the Tyrells responded to the inquiry in item 2, whether the application involved development on land contiguous to a State-controlled road, that it did so.  For some reason, the box against (i) for material change of use assessable against the planning scheme was ticked, rather than the box (ii) immediately below, which was the appropriate one, being for "reconfiguring a lot - unless the number of lots does not increase and the number of lots abutting the State-controlled road does not increase."

There was a minor error there.  Things became worse when the Council officers proceeded to process the application.  The acknowledgment notice dated 14 June 2005 identified the application as code assessable and the concurrence agencies as the Department of Natural Resources solely.  In its current emanation, that is the Department of Environment and Resource Management, whose chief executive, the second respondent, is represented by Mr Cavendish.

The third respondent’s Department has been cooperative in supplying in a letter dated 9 February 2011 a concurrence agency response indicating acceptable conditions of development approval.  The notion is that this document gives some idea of what the Department's view would have been back in 2005.

The Kirkpatrick Road access to the proposed rear lot is deemed unsafe now and Mr Reid is making arrangements for access, presumably through an easement, across the portion of the site which will retain frontage to Tableland Road.

The application is for declarations identifying what has gone wrong and what might be done about it now with a view to avoiding complications in the appeal that might flow from the exclusion of an important concurrence agency. Section 818(2) of the Sustainable Planning Act 2009 (SPA) is the source of the Court's jurisdiction to deal with this matter. The source of the Court's power to identify an appropriate way in which the matter may now be dealt with is section 820. All parties concerned, including the Council, are supportive of the relief which the applicant proposes being granted.

There are declarations to the effect that Ms Hussey’s client ought to have been involved as a concurrence agency back in 2005 and was not. The order also recites the Court's satisfaction that matters ought to proceed as if the 2005 development approval, which is under a cloud for the reasons mentioned, ought to be treated as one validly granted under the Integrated Planning Act 1997.

The order goes on to direct that Ms Hussey’s client be treated as a concurrence agency for the development application and be served with the notice of appeal and entitled to join in that appeal if it wishes.  Mr Skoien, for Mr Reid, conceives that resistance to the appeal is only likely to come from the Council for reasons which presently do not matter.

Order as per initialled draft.

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