Smerdon v Maroochy Shire Council
[2005] QPEC 46
•6 June 2005
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Smerdon v Maroochy Shire Council [2005] QPEC 046
PARTIES:
VERN ALFRED SMERDON
Applicant
v
MAROOCHY SHIRE COUNCIL
Respondent
FILE NO/S:
BD2810/2003
DIVISION:
Appellate
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
6 June 2005
DELIVERED AT:
Brisbane
HEARING DATE:
27 May 2005
JUDGE:
Nase DCJ
ORDER:
That the disputed issues in the appeal be identified as those grounds set out in the notice of appeal.
CATCHWORDS:
COUNSEL:
Mr S M Ure for the applicant
Mr C L Hughes SC for the respondentSOLICITORS:
King & Company solicitors for the applicant
Maroochy Legal Services for the respondent.
This is an application for an order that certain matters notified by the respondent to the appeal as disputed issues in the appeal be struck out.
The relevant chronology is as follows:
On 4 February 2000 Vern Alfred Smerdon (“the appellant”) lodged an application with the Maroochy Shire Council (“the council”) for a development permit to reconfigure a lot into 48 lots (being a proposed rural residential subdivision).
On 21 October 2002 the council by a negotiated decision notice granted a development permit (subject to conditions) for 25 lots of the 48 lots proposed, and granted preliminary approval (subject to conditions) for 23 lots of the 48 lots proposed.
On 11 December 2002 the appellant lodged an appeal (number 4840 of 2002) from the decision to grant preliminary approval only for 23 of the proposed lots when the development permit was applied for. The appeal was lodged under s 4.1.27(1)(c) of the Integrated Planning Act 1997 (“IPA”).
On 20 March 2003 the appellant lodged a development application for operational works approval in respect of the 25 lots for which he held a development permit.
On 27 August 2003 the appellant lodged an appeal (number 2810 of 2003) from the council’s deemed refusal to approve the application for operational works.
The reason the council withheld development permission to 23 lots of the 48 lots proposed was because of the proximity of those lots to a quarry. This is reflected by one of the conditions attached to the preliminary approval for reconfiguration of 23 of the lots. Condition 20 to the preliminary approval is a condition prohibiting subdivision while the quarry continues to operate. The appeal from this decision therefore involves a consideration of the compatibility (or incompatibility) between the proposed rural residential subdivision and the operation of the adjacent quarry.
The council now says it has changed its mind about the development approval for the reconfiguration of the 25 lots. That decision, however, cannot be withdrawn by the council under the legislation. In these circumstances the council has warned the appellant, that on the appeal from the decision to grant preliminary approval only for the reconfiguration of the 23 lots (number 4840/02) the evidence it will place before the court will incidentally put in issue the development permit granted for the 25 lots. Mr Hughes SC in his submission, for the council, pointed out the court determining that appeal (number 4840/02) has the power to reconsider the development permit granted for the 25 lots.
Mr Ure, who appeared for the appellant, took issue with the idea the development permit granted for the 25 lots could be in jeopardy in the first appeal (number 4840/02). The issue between the parties, as I understand it, involves a question of statutory interpretation. Although it is useful to understand the respective positions of the parties to determine the application before me, it is not necessary for me to express any concluded view on what is in reality the principal point of contention between the parties (the statutory interpretation point).
Under the planning legislation, institution of the appeal from the grant of preliminary approval for reconfiguration of the 23 lots, operates as a stay on the development as a whole.[1] Mr Ure in supporting the application, accepted the appellant would require the authorisation of the court pursuant to s 4.1.47(2)[2] IPA before the commencement of any operational works. Mr Ure suggested that the appropriate time to bring any application to start works pursuant to s 4.1.47(2) IPA was after receiving approval for the operational works application. Although there may be an argument that authorisation under s 4.1.47(2) IPA to start development of the 25 lots should first be obtained, for the purposes of this application I accept that Mr Ure’s proposed timetable is reasonable.
[1]Because of the combined effect of s 3.5.19(c) IPA by which the decision notice (or negotiated decision notice) takes effect only when any appeal is fully decided, and s 4.1.47 IPA under which the development must not be started until the appeal is determined or withdrawn.
[2]Section 4.1.47(2) IPA provides: “Despite subsection (1), if the court is satisfied the outcome of the appeal would not be affected if the development or part of the development is started before the appeal is decided, the court may allow the development or part of the development to start before the appeal is decided.”
The present dispute arose out of a directions hearing before Judge A Wilson SC on 27 January 2005. On that occasion the judge ordered (inter alia) that the disputed issues in the appeal be identified as those set out in the notice of appeal together with such further issues as the council notify in writing.
The further issues notified by the council in accordance with the order made by Judge A Wilson SC on 27 January 2005 are set out in a letter dated 4 February 2005 as follows:
“In accordance with the second paragraph of His Honour’s Order (as amended) we notify the following further disputed issues in this appeal:
(1) It is premature to grant the operational works permit having regard to the following history of this development:
(a) the application for reconfiguration proposing 48 rural residential allotments (referred to in paragraph 1 of the Notice of Appeal filed herein) was a single application to develop the whole of a specific parcel of land, immediately adjacent to a hard rock quarry, for a residential subdivision;
(b) the resources in the said hard rock quarry are valuable to the community as a whole;
(c) the quarry face is progressing in the direction of the land the subject of the said application for reconfiguration;
(d) the respondent, in determining the said application, sought to deal with the town planning issue of the proximity between the subject land and the said hard rock quarry by:
(i) granting a development approval for some of the 48 allotments sought; and
(ii) granting only a preliminary approval for reconfiguration and development of the balance of the allotments with such reconfiguration not to occur until the hard rock quarry activities had ceased.
(e) the respondent’s decision with respect to this application, including its decision with respect to which allotments ought to be the subject of a development permit and which allotments ought to be the subject of a preliminary approval, is a matter which is subject to review in this Court in P & E Appeal No.4840 of 2002 lodged by this appellant against the decision of this respondent; accordingly
(f) it is inappropriate and premature to consider the issue of the subject operational works permit.
(2) The grant of the operational works approval is premature pending the resolution of P & E Appeal No 4840 of 2002 in which the Planning and Environment Court will be asked to examine and determine, on the best evidence available to it and having regard to the disputed issues in that appeal:
(a) the extent to which any of the original 48 rural residential allotments proposed ought to have been the subject of:
(i) a development permit;
(ii) a preliminary approval (and, if so, the appropriate conditions in respect of any such preliminary approval).
(b) conditions which ought to apply in respect of the application to develop the 48 residential allotments the subject of P & E Appeal No.4840 of 2002.
(3) The approval of the application for operational works is premature unless and until the appellant obtains an order pursuant to Section 4.1.47(2) of the Integrated Planning Act to proceed with part of the development proposed in respect of Lot 208 on RP880223, in the development application referred to in paragraph 1 of the Notice of Appeal filed herein.
(4) Further, having regard to the matters referred to above, approval of the said application would compromise the achievement of Desired Environmental Outcomes for the planning scheme area and in particular:
(i) Desired Environmental Outcome No.2 – Social Equity and Liveability (c) requiring noise sensitive developments to be set back or buffered from major sources of noise generation including extractive industries; and
(ii) Desired Environmental Outcome No.3 – Economic Sustainability (e) requiring noise sensitive uses to be located outside of, or adequately buffered from identified extractive industry resources areas.”
I am satisfied that all of the issues raised are strictly irrelevant to a consideration of the merits of the operational works application. The issue whether the appellant should be authorised to commence development of the 25 lots under s 4.1.47(2) IPA is a question that should be resolved within an application under s 4.1.47(2) IPA. Without authorisation under the section no development can be undertaken. The only hesitation I have is a procedural one, that is, whether authorisation pursuant to s 4.1.47(2) IPA to commence the development should be obtained before determination of the operational works application.
The application seeks a declaration the issues notified by the council are irrelevant, or in the alternative, an order striking out the issues notified. The better course at this stage of the appeal is for me to give a further direction in relation to the disputed issues, which direction effectively amends direction number 2 given by Judge A Wilson SC on 27 January 2005.
Order
That the disputed issues in the appeal be identified as those grounds set out in the Notice of Appeal.
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