Shoreline Park Pty Ltd as Trustee for the Shoreline Park Unit Trust –v –Mackay City Council
[2006] QPEC 20
•22 February 2006
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
| CITATION: | Shoreline Park Pty Ltd as Trustee for the Shoreline Park Unit Trust –v –Mackay City Council [2006] QPEC 020 |
| PARTIES: | SHORELINE PARK PTY LTD AS TRUSTEE FOR THE SHORELINE UNIT TRUST Applicant Against MACKAY CITY COUNCIL Respondent |
| FILE NO: | 97 / 06 |
| PROCEEDINGS: | Application for interim injunction |
| DELIVERED ON: | 22 February 2006 |
| DELIVERED AT: | Townsville |
| HEARING DATE: | 22 February 2006 |
| JUDGE: | CF Wall QC |
| ORDERS: | Interim injunction granted |
| CATCHWORDS: | BUILDING AND CONTROL AND TOWN PLANNING – Town planning – proposed new planning scheme advertised - Appct’s land included in Special Activities (Tourism) zone - no objection by Appct - zoning later changed to Open Space zone without notice to Appct - wh Schedule 1, s16 Integrated Planning Act complied with - wh proposed planning scheme is significantly different from that advertised - serious question to be tried Legislation referred to: |
| COUNSEL: | Mr J. Baulch S.C. for the Applicant |
| SOLICITORS: | Taylor Solicitors for the Applicant |
HIS HONOUR: This is an application for an interim injunction under the Integrated Planning Act. The subject land which is shown on Exhibit 1 is currently zoned "Particular Development No. 25 - Caravan Park".
In early 2005 the Mackay City Council publicly advertised the fact that it intended to make a new planning scheme and that the council proposed to include the subject land in a "Special Activities (Tourism)" zone. At that time the council called for written submissions about any aspects of the proposal. The applicant which owns the subject land had no objection to the zoning of the land being changed and accordingly did not make any submissions in respect of the new planning scheme. The council zone map made available to the public in early 2005 during the public consultation process shows the subject land as intended to be included in the new town plan in the "Special Activities (Tourism)" zone.
On the 28th of July 2005 the council refused an application by the applicant for a material change of use for the subject land. That decision is the subject of an appeal to the Planning and Environment Court sitting in Mackay, Appeal 7 of 2005.
On the 24th of January 2006 the council planning officer, John Winsbury, in an email to Michael Jewell, a planning consultant retained by the applicant, advised that it was the council's intention to zone the subject land "Open Space" in the new planning scheme. Kevin Alexander Wallace, a director of the applicant, has been informed by Mr Jewell and verily believes that the new planning scheme is currently with the Minister for Local Government Planning, Sport and Recreation and it is likely within the next week to be returned to the council for adoption with or without amendments.
The relevant statutory provisions covering new planning schemes are contained in schedule 1 of the Integrated Planning Act and for present purposes the relevant section is section 16. Section 16 provides as follows:
"16 Decision on proceeding with proposed planning scheme
(1)After considering every properly made submission, the local government must decide whether to -
(a)proceed with the proposed planning scheme as notified; or
(b)proceed with the proposed planning scheme with modifications; or
(c)not proceed with the proposed planning scheme.
(2)If the local government decides to proceed with the proposed planning scheme with modifications and is satisfied the modifications make the proposed planning scheme significantly different from the proposed planning scheme as notified, it must recommence the process outlined in this schedule from section 12."
The applicant contends that the modification to the original proposal to include the subject land in the "Special Activities (Tourism)" zone to now include it in the "Open Space" zone is a modification significantly different from the proposed planning scheme as notified and in those circumstances the process outlined in section 12 of schedule 1 should be recommenced.
I think in the circumstances there is a serious question to be tried about this issue, namely, whether the council have in fact complied with section 16 of schedule 1. I think in the circumstances that the balance of convenience favours the grant of an interim injunction, albeit at this stage for a day or so.
I am told that the material presently before me has now been served on the council and for that reason it would not appear necessary to make any order about service of the material. In the circumstances I order as follows:
(1)Upon the applicant by its counsel giving the usual undertaking as to damages, the respondent by itself, its servants and agents be restrained until further order from adopting the new town planning scheme for the city of Mackay;
(2)That the further hearing of the application be adjourned until 11 a.m. on the 24th of February 2006.
...
HIS HONOUR: I will also order that the application be transferred from the Planning and Environment Court at Mackay to the Planning and Environment Court in Townsville.
I direct the Registrar to issue an order in terms of the draft order which I have initialled and dated and placed with the papers.
Postscript
On 24 February 2006 upon hearing counsel for the applicant and counsel for the respondent the court made the following orders:
1.Upon the applicant by its counsel giving the usual undertaking as to damages, that the respondent by itself, its servants and agents, be restrained until further order from adopting that part of the new town planning scheme for the City of Mackay that comprises of any modifications made after notification of the scheme and which affects the applicant’s land the subject of these proceedings.
2.That the application be set down for hearing in Townsville on the 13th and 14th of March 2006
On 13 March 2006 an order by consent was made in the following terms:
That provided the Applicant’s Land described as Lot 364 on Plan C12891 in the County of Carlisle, Parish of Bassett, Title Reference 21321244 is included in the Special Activities (Tourism) Zone in the Respondent’s proposed initial Integrated Planning Act Compliant Planning Scheme (“the proposed Planning Scheme”) as modified by the Respondent after public notification, the Respondent may adopt its proposed Planning Scheme.
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