Sunshine Coast City Council v Marshall (No 2)

[2011] QPEC 142

[2011] QPEC 142

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 1735 of 2011

SUNSHINE COAST CITY COUNCIL	Applicant
and
MELVILLE ROBERT MARSHALL	Respondent

P & E Application No 4243 of 2011

MELVILLE ROBERT MARSHALL             Applicant

and

SUNSHINE COAST CITY COUNCIL          Respondent

BRISBANE

..DATE 09/11/2011

ORDER

CATCHWORDS

Given a developer's late notice to the Council that he wanted his new application to establish the lawfulness of filling activity determined in advance of the Council's longstanding enforcement proceeding to prevent the filling, the Council was allowed an adjournment to consider its attitude
HIS HONOUR:  I will adjourn 4243 of '11 and 1735 of '11 to 18 November 2011.  That is to satisfy what I think is a reasonable requirement of the Council for additional time to consider the attitude that ought to be taken, not to Mr Marshall's proceeding for which this is the first return date on the basis of the relief sought in the originating application, but because of the terms of the orders proposed today by Mr Marshall which, among other things, call for his application to be determined in advance of the Council's application which is an enforcement proceeding.

The court thought it appropriate to indulge Mr Marshall when an expert engaged by him, Mr Winders, required additional time  to comply with a timetable that had been set in the enforcement proceeding.  The requests for that additional time was considered reasonable.

The filling activities, which the council wishes to prevent, are said to be threatening the interests, perhaps the very livehoods, of persons in the general area such as strawberry farmers whose crops are said to be effective.

The contention is made that Mr Marshall is doing no more than exercising pre-existing use rights which go back earlier than the early 1970s before there even was a planning scheme.

Mr Marshall's contention is that either under the general law or under conditions pertinent to authorised environmentally relevant activities or to development which is controlled by the Council, rehabilitation activities including large scale filling is permissible as ancillary to an extractive industry.

One of the aspects of the situation is that both the Environmental Protection Authority (or DERM) and the Council have remits to attend to.  Satisfying one does not necessarily satisfy the other.

The court, in my view, ought to be cautious at this stage considering the range of public and private interests involved about inadvertently separating out issues and requiring determination of some before others.

In those circumstances, I think the Council is entitled to the modest adjournment it seeks of a week to consider what line it ought to take.  The originating application it faces is unusually complex, running to 129 paragraphs, making assertions of historical matters and legal ones.  It can be seen that the situation is complex.

Both matters are adjourned to 18 November 2011 and costs are reserved generally.

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