Canungra Commercial Pty Ltd v Scenic Rim Regional Council & Ors [2012] QPEC 37

1 [2012] QPEC 37 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 2465 of 2012 CANUNGRA COMMERCIAL PTY LTD ACN 110 530 884 Applicant and SCENIC RIM REGIONAL COUNCIL First Respondent and DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT and DEPARTMENT OF TRANSPORT AND MAIN ROADS P & E Appeal No 813 of 2011 CANUNGRA COMMERCIAL PTY LTD ACN 110 530 884 and SCENIC RIM REGIONAL COUNCIL and DEPARTMENT OF ENVIRONMENT AND RESOURCES and DEPARTMENT OF TRANSPORT AND MAIN ROADS and TUAN NGUYEN AKA TONY NGUYEN, ANNE NGUYEN, SIEN VAN NGUYEN AND THAO PHUONG THI PHAM and CANUNGRA FOODWORKS PTY LTD ACN 123 445 808 and Second Co-Respondent Third Co-Respondent Appellant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Responden -- 1 of 4 -- 1-2 1 10 20 30 40 50 60 CANUNGRA AREA DEVELOPMENT ASSOCIATION INC and TONY NGUYEN AND OTHERS Sixth Respondent Seventh Respondent BRISBANE ..DATE 04/05/2012 ..ORDER CATCHWORDS Sustainable Planning Act 2009 s 457(2) Conditions appeal and adverse submitter appeal challenging the development approval - application by developer for declaration that change to the proposal by adding a pedestrian access along a drainage easement across neighbouring land not included in the development application is minor change only - late provision by developer of hydrological evidence leads to request by other parties for adjournment - costs thrown away by adjournment reserved -- 2 of 4 -- 1-3 ORDER 1 10 20 30 40 50 60 HIS HONOUR: These appeals concern a shopping centre development in the town of Canungra for which the local authority granted approval. There is a conditions Appeal by the developer and an adverse submitter appeal contending that the development ought not to have been approved at all. Set down for today is the developer's application for a declaration that a change to its proposal is a minor one which would not stand in the way of the proceedings going ahead to a full hearing on their merits. The change is to provide an additional pedestrian access to the proposal from Christie Street, to be a three metre path constructed along the edge of a drainage easement which the council presently holds over adjoining land which might be called Lot 8. It has never been indicated that Lot 8 is land included in the development proposal. That is one of the issues. Of a less technical nature, from a legislative point of view, are hydrological issues. The drainage easement leads from Christie Street to higher land to the north and, indeed, beyond lot 8, runs beneath the carpark fronting Finch Road which forms part of the proposal. The proposal dealt with drainage issues by piping underneath the carpark. Piping is now the proposal for the uphill section of overland flow from Christie Street, so that the three metre wide pedestrian path can be at grade. Hydrological issues are already in the appeal. An adjournment is sought by the respondent council and the appellants in Appeal 813 of 2011 on the basis of late receipt -- 3 of 4 -- 1-4 ORDER 1 10 20 30 40 50 60 of evidence which the developer wants to rely on. By its counsel Mr Ure, it concedes that it is appropriate, even desirable, for the other parties, Council in particular, to have an opportunity to consider the proposed change. The Court orders that costs thrown away by the adjournment be reserved. The adjournment is applied for by Mr Skoien's clients and Mr Loos's client, the council, but the application is not based on any concession that their preparation for today has been remiss. They say that they have effectively been compelled to seek the adjournment by the late provision of material for their consideration. This may give rise to the Courts having jurisdiction to make an order for payment of their costs thrown away under s 457(2) of the Sustainable Planning Act 2009. ... HIS HONOUR: I vacate the direction for hearing of Canungra Commercial Pty Ltd's application today and adjourn both appeals for mention on the 18th of May 2012, costs thrown away by the adjournment to be reserved. ----- -- 4 of 4 --