Burns Bridge Australia Pty Ltd v Council of the Shire of Noosa & Ors [1994] QPEC 86

..... i/;s f~E 94(08£ State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director. State Reporting Bureau.) REVISED COPIES ISSUED State Report:ng Bureau Date /{;; I I/' I e, [C PLANNING AND ENVIRONMENT COURT JUDGE QUIRK r 11, _ p & E Appeal No 299 of 1994 BURNS BRIDGE AUSTRALIA PTY LTD and COUNCIL OF THE SHIRE OF NOOSA and THE DIRECTOR GENERAL, DEPARTMENT OF TRANSPORT and GILBAR ENTERPRISES LIMITED and SCHRODERS AUSTRALIA PROPERTY MANAGEMENT LIMITED BRISBANE .. DATE 1 6 / 1 2 / 9 4 JUDGMENT Appellant Respondent First Respondent by Election Second Respondent by Election Third Respondent by Election 11 • . Q 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 Street, Brisbane. • 4th Floor, The Law Courts, George -=~ -- - -- 1 of 5 -- ~ - 161294 T 1/SA M/T CMS178/94 (Quirk DCJ) HIS HONOUR: Subsequent to a ruling made on 25 November that the proposal that accompanied the rezoning application would · of Section 8.4 of the Act inbe contrary to the provisions that it included in part a service station, the appellant has put forward an amended proposal in which the service station 10 component has been deleted. The appellant has applied to have the appeal proceed to hearing and determination on the basis of that amended application. The making of such a ruling is opposed by the respondent and some of the respondents by election. The 20 : effect of the intended amendments to the proposal are usefully I'. summarised in paragraph 3 of the affidavit of Mr Peter Zahnleiter, the appellant's town planning consultant, which was filed on 8 December. Aside from the removal of the service station, a nursery has been deleted and there has been some reduction in the leasable floor area of the proposed shopping centre with consequential reductions in the provision of on-site car parking. rt was not,seriously suggested that these changes to the proposal were such as to be likely to provoke any further objection to it. 30 40 50 1_:L, 2 JUDGMENT -- 2 of 5 -- 161294 T 1/SA M/T CMS178/94 (Quirk DCJ) The argument advanced by the respondent agai'nst my making the 1 ruling sought was that the appli'cati·on, being for a form of development which the law did not allow, was thereby rendered a nullity and that it was beyond the power of either the council or the Court to deal with.it. rt was further submitted that the application's jnvalidity was beyond correction by amendment. 10 Council for the respondent referred me to a number of decisions where it has been held that an application was invalid as made and that the planning authority and the Court 20 therefore had no power to deal with the application. ·These authorities included the well known High Court decision of Pioneer Concrete Pty Ltd against Brisbane City Council and others, 145 CLR, 485, and reference was also made to cases in 30 this Court concerning applications which were not accompanied by certain studies required by the Act. The point to be noted about these cases was that they involved instances of applications failing to comply with legislative provisions that referred specifically to the form of an application or to the way in which it was made. Here the legislative provision which I applied related not to the actual application but to the development which it initially envisaged. 40 50 3 JUDGMENT -- 3 of 5 -- 161294 T 1/SA M/T CMS178/94 (Quirk DCJ) th ·t and authoritative textsr was also referred to au ori Y dealing with the consequences of administrative decisions which are found to lack validity, at least in part, and whether such a decision should be seen as being void or voidable. we are not, however, here dealing with the validity or otherwise of an administrative decision. What is under attack is an application made in accordance with the relevant provisions of the Act and which sought an amendment of the relevant town planning scheme to allow an identified form of development to take place. That the particular form of development was one that the law would not allow would have 10 20 been a compelling reason for refusing the application as presented but not, in my view, for refusing to deal with it at all. 30 Many are instances of proposals being rejected by a local authority or this Court because it is found that the proposal infringes the law as it appears in the Act, the town plan or a 1 ,i relevant by-law. To say that, in all of these cases, the local authority or the Court lacked jurisdiction to so decide is another matter entirely and a view which I do not share. I am not satisfied in this case that the application lacked validity as an application because it contemplated a form of development which could not, as a matter of 1 aw, have been 40 I \ approved. ~ 4 JUDGMENT -- 4 of 5 -- 161294 T 1/SA M/T CMS178/94 (Quirk DCJ) I am satisfied that the application in this case is open to amendment in the way proposed and that the appeal should proceed on that basis, subject to a further matter which, as I understand it, yet remains to be argued. HIS HONOUR: Order as per draft. 10 20 30 40 50 5 JUDGMENT -- 5 of 5 --