Copebrook Pty Ltd v Mackay City Council [1996] QPEC 85

I / 3.1it.} ?*r ,61085 rN THE PLANNTNG AND ENVIRONMENT COURT HELD AT BRTSBANE OUEENSLAND Appeal No. 152 of 1995 BETWEEN COPEBROOK PTY LTD Appellant AND MACKAY CITY COT'NCIL Respondent REASONS FOR JUDGMENT - OUIRK D.C.J. nelivered the ///'i day of March 1996 this appeal was against a deemed refusal of an application for the rezoning of a little over 70 hectares of land north of Mackay. The application was made on 5th october L994. By letter dated 7th November Lgg4, the Chief Executive Officer of the Mackay City Council advised the appellantsl consultant that, in the Councilrs opinion, the subject land adjoined an area such as is referred to in Schedule 3 to the Regulations and was therefore a ttdesignated developmentrl within the meaning of S.8.2 of the Act. Accordingly, pursuant to s.8.2(2) a request to the Chief Executive of the Department for advice as to the necessity for an Environrnental Impact Statement was called for. On 2oth December lgg4 the appellantrs Consultant wrote to the chief Executive of the Department asking whether an EIS -- 1 of 2 -- 2 was required in relation to this deveropnent. By retter dated 17th February 1995 the Departnent advised that an Ers was requifed and identified the relevant terms of reference. The Ers has since been prepared and subnitted to the councir. The difficulty that has arisen in the appear is that, at the tirne of the respondentrs letter of zth Novenber Lggl, the apprication had, as arready stated, been subnitted and the relevant notification and advertisement procedures have been carried out.. sect,ion 8.2 (5c) rnakes it clear that in a case where an Ers is required, the study must be subrnitted with the apprication and an extended period for the rodging of objections (30 days) is a consequence of s.8.2(7). It is obvious that the Ers is intended to be availabre with the application :for inspection by those who night be deciding whether or not to object to it,. The application therefore is not one which has been ttduly maderr within the meaning of s.4.1(2)(b) of the Act. The resurt is that a right of appear to this court pursuant to s.7.1(2A) (on a rrdeemed refusarrt basis) has not arisen. The appeal must, accordingly be disrnissed. -- 2 of 2 --