Sumvista Pty Ltd v Redland Shire Council

[2005] QPEC 76

[2005] QPEC 076

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

Appeal No BD2933 of 2004

SUMVISTA PTY LTD,
PAUL DAVID WRUCK AND MARGARET ANNE WRUCK

Appellant

and

REDLAND SHIRE COUNCIL

and

TABTILL NO 2 PTY LTD

Respondent

Co-respondent

BRISBANE

..DATE 03/08/2005

ORDER

Catchwords:  After the judge who heard an adverse submitter appeal published reasons for concluding it ought to be dismissed, but that "appropriate conditions" should be drafted, a second judge may dispose of the appeal by approving a revised approval package incorporating such conditions - increase from 32 to 34 lots permitted by improved road layout considered a "minor change".

HIS HONOUR:  This is a somewhat unusual situation.  I take it the explanation for my involvement is that Senior Judge Skoien is on leave.  On the 19th of January this year after a hearing in the preceding month his Honour published reasons for what he called his "conclusion" which was, "The appeal will be dismissed.  I invite the parties to draft appropriate conditions incorporating findings I have made."  No formal orders were pronounced.  The proceeding remains on foot.

As the reasons show, although his Honour foreshadowed dismissing the appeal that occurred on the basis that there would be a revised set of conditions governing the development approval which the co-respondent had obtained from the Council:  the appeal was one by adverse submitters.  They were the only adverse submitters and collectively controlled adjoining land.

The parties have been able to agree on an appropriate set of conditions which give effect to the views Senior Judge Skoien expressed in his reasons.  The development application has been changed in the process.  One matter of potential significance is that the number of residential lots in the co-respondent's subdivision increases from 32 to 34. 

That is made possible because a proposed road ending in a cul-de-sac providing access to the remoter lots proposed has been shortened.  Those "rear" lots, as they may be thought of, will now be accessed by a road to be constructed along the eastern boundary of the site. 
A road was always proposed there but it was not proposed that the present co-respondent construct it.  It now will participate in a joint exercise with the appellants (who stand to gain some benefit) of constructing that road which the revised plans contemplate.

The new arrangements improve access to the site with the consequence that two further residential lots can comfortably be accommodated.  Potentially that change is more than a minor change. As it happens, the local government is agreeable to it and Mr Walters' clients, the appellants, representing the sum total of those who might have been likely to make submissions, are agreeable to the prospect of two further dwellings on two additional lots.  It seems to me to come within the concept of a minor change.  It is accompanied by considerably improved access arrangements. 

One of the contentious issues has been drainage, not concerning enough to affect his Honour's approach to the extent of thinking the development application should be rejected.  The proposed new road will alleviate the principal drainage concerns. 

His Honour at paragraph [31] of his reasons, expressed approval of a statement of Judge Brabazon in Wingate Properties Pty Ltd v. Brisbane City Council [2001] QPELR 272 at paragraph [21] to the effect that "It is not the function of the Court or any planning authority to refuse an application because it considers that the proposed use is not the best possible use for the site. It is not the function of the Court to re-design the proposal." It is pleasing to note that, to the extent to which his Honour expressed views, the parties have gone a great distance towards accommodating them.

While, ordinarily, one would expect his Honour to have the final say and the final task of pronouncing orders concluding the appeal which was argued before him, I am comfortably satisfied that it is proper and convenient for me to conclude the appeal by making an order in terms of the initialled draft handed up by the parties.

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