Coolum Industrial Projects Pty Ltd v Maroochy Shire Council [2006] QPEC 53

1 [2006] QPEC 053 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Application No 1075 of 2006 COOLUM INDUSTRIAL PROJECTS PTY LIMITED Applicant (ACN 112 298 496) and MAROOCHY SHIRE COUNCIL Respondent BRISBANE ..DATE 21/04/2006 ORDER CATCHWORDS: Integrated Planning Act 1997 s 3.5.33. Condition incorporated in Court order changed to permit (rather than preclude) access to a road abutting a street frontage of a development site - revised plans for the area reduced its importance to the network - no assessable development involved in the change. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 4 -- 21042006 T07/JIR39 M/T CMS45/2006 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application to vary conditions contained in an order of the Court, which was one made in Maroochydore by Judge Dodds on the 11th of February 2005. The relevant section of the Integrated Planning Act 1997 is section 3.5.33. It is necessary to involve the Court because the condition sought to be changed was part of the Court's order. The applicant, the developer, must show, as subsection (1)(b) indicates, that no assessable development would arise from the change. The effect of the change is to permit access from lot 88 in an industrial sub-division to Quanda Road. The original condition 23 precluded such access in respect of lots 87, 88, 91, 92, 115, 116 and 145. The traffic engineering reason for that was that it was important to accommodate the future envisaged for Quanda Road as an important link to anticipated development further north. The consequence of the condition was that access from sites to the public road system should be taken by another road following an east/west track which intersected Quanda Road. Lot 88 is a corner block. Changes in thinking about the future of Quanda Road mean that it is no longer important to preclude access from adjoining sites even where, as in the case of lot 88, they may have alternative access. -- 2 of 4 -- 21042006 T07/JIR39 M/T CMS45/2006 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 All of the surrounding land is industrial and as it happens that most affected, being land on the opposite side of Quanda Road, is owned by the applicant. It is difficult to see that any assessable development would arise from the changes sought, it simply permits the applicant to exercise the right, which landowners usually have, to access public roads across their frontage. There is no longer a justification for limiting the enjoyment of such access in respect of lot 88 and so the condition ought to be changed. I make an order in terms of the initialled draft. It removes lot 88 from the list in condition 23 so far as exclusion from access to Quanda Road is concerned and makes special provision for lot 88 that its: "Access to Quanda Road shall be limited to the plans approved under development application number MCU05/0183 dated 21 September 2005". It is unsatisfactory that for all that appears no copy of the approval is before the Court. I have added to the words quoted in the draft order: "A copy of which is Exhibit 1" -- 3 of 4 -- 21042006 T07/JIR39 M/T CMS45/2006 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 in the expectation that the applicant and the Council have separately undertaken to provide a copy of the document to the Court. Only one copy is required, so that the performance of either of its undertaking would discharge the other's undertaking. I have also added "liberty to apply" to the draft order. ... ----- -- 4 of 4 --