Bowman & Ors v Council of the Shire of Maroochy & Anor [1993] QPEC 72

) State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold ;thou! the written authority of the Director, State Reporting Burea:.) "" ~·-, "' Rc:.VL::.::D CO:-::=-;) b;:,UED PLANNING AND ENVIRONMENT COURT JUDGE ROW P & E Appeal No 17 of 1992 GLENDA FRANCES BOWMAN & ORS and MAROOCHY SHIRE COUNCIL and LOUISE JENNIFER CHERNOV MAROOCHYDORE .. DATE 06/10/93 JUDGMENT Dateo2 I I 0/ 3 Appellant Respondent Respondent by Election 1 -- 1 of 8 -- 061093 D.1 T 1/KAN M/T MCYPE018 (Row DCJ) HIS HONOUR: I dismiss the application, I publish my reasons. 1~ I make no order as to costs. 10 20 30 ( 50 60 2 JUDGMENT -- 2 of 8 -- J IN THE PLANNING AND ENVIRONMENT COURT HELD AT MAROOCHYDORE QUEENSLAND P&E APPEAL No. 17 {M'DORE) of 1992 Before ROW DCJ [BOWMAN v MAROOCHY S.C.] BETWEEN: GLENDA FRANCES BOWMAN & ORS APPELLANTJ AND COUNCIL OF THE SHIRE OF MAROOCHY AND Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): RESPONDENT LOUISE JENNIFER CHERNOV RESPONDENT BY ELECTION 6.10.93 G. GARRICK (SOLICITOR) FOR APPELLANTS J.D. HALL (SOLICITOR) FOR RESPONDENT RESPONDENT BY ELECTION IN PERSON BOYCE GARRICK EASTMAN FOR APPELLANTS J. D. HALL ( SHIRE SOLICITOR ) FOR RESPONDENT) 29.9.93 -- 3 of 8 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT MAROOCHYDORE QUEENSLAND P. & E. Appeal No. 17 of 1992 BETWEEN: GLENDA FRANCES BOWMAN AND ORS. Appellants THE COUNCIL OF THE SHIRE OF MAROOCHY Respondent AND: LOUISE JENNIFER CHERNOV Respondent by Election 29 September 1993 REASONS FOR JUDGMENT ROW D.C.J Delivered the sixth day of October 1993 - Maroochydore The appeal herein is by a number of objectors against a decision of the respondent to approve, subject to conditions, an application by the respondent by election to rezone land situated at 6-14 Orme Road, Buderim by excluding the said land from the Residential "A" Zone and including the land so excluded in Special Facilities (Tearoom, Gallery and Function Room) Zone. The decision of the respondent was made on 7 July 1992 and notification of the said decision was communicated to the appellants and the respondent by election by letter dated 14 July 1992. -- 4 of 8 -- 2 On 18 November 1992 an order was made by consent of the parties whereby the appeal was allowed and the application to rezone was approved subject to amended conditions. The order was taken out on 26 November 1992. Al though not expressed in terms as a Consent Order it was common ground between the parties that all parties consented to the order as made. No evidence was adduced by any party to the Court. As the order varied to some extent the conditions initially imposed by the Respondent the appeal was properly allowed. Even though the order was made by consent such order was a determination on the appeal by the Court for the purposes of an application for modification under s.4.15(2(c) of the Act. The order dated 18 November 1992 is a final order. Whilst the order within itself confers upon the parties liberty to apply, that provision relates only to the machinery to assist with the working out of the order. It does not empower any party to apply to have any substantive provision of the order varied or amended. By letter dated 2 March 1993 the respondent made application to the Minister for approval by the Governor in Council to amend its Town Planning Scheme in accordance with the order. By Order in Council published in the Queensland Government Gazette dated 14 May 1993 the Town Planning Scheme was amended accordingly. By an application filed in the Court on 3 September 1993 the respondent by election sought what is described as a variation of the terms of the order made on 18 November 1992 by deleting -- 5 of 8 -- 3 paragraph 2(a) and substituting in lieu thereof a new paragraph 2 (a), deleting paragraphs 3, 4 and 9 ( b) and amending paragraph 10(a); (b) and (c). On the application coming before the Court for hearing on 29 September 1993 it was submitted on behalf of the respondent and the appellants that the Court had no jurisdiction to hear and/or determine the application. The applicant (respondent by election) in the original appeal appeared in person together with her husband who was the spokesperson. They had not read the Local Government (Planning and Environment) Act and were unable to advance any substantive legal argument in relation to the question of jurisdiction. Whilst no legal arguments were advanced on behalf of the respondent by election, it is nevertheless the obligation of the Court to determine whether in the circumstances the Court has jurisdiction to hear and determine the application for a variation or modification of the order as sought. As at the date of the hearing of this application the relevant Planning Scheme has been amended in accordance with the order the Court made on 18 November 1992. Under s.4.3 of the Act a person may make application to a local authority to amend a Planning Scheme and/ or the conditions attached to an amendment. No application has been made by the respondent by election to the Local Authority for an amendment of the conditions of rezoning. The only application is that made to the Court to vary the terms of the order. The subsequent -- 6 of 8 -- 4 statutory provisions as to the procedures to be followed consequent upon such an application to a Local Authority under s.4.3(1) have not been followed. It was submitted on behalf of the appellants and the respondent that the Court had no jurisdiction to hear the application. In particular reference was made to s.4.15(2)(c). Under s.4.15 an application may be made to a Local Authority seeking the modification of an approval to which the section applies or a condition to which the section applies. Under s.4.15(1A)(a) the section applies to any application made under s.4.3(1) (amendment of a planning scheme by an applicant). Under s.4.15(2) a Local Authority is not to approve an application to modify made under subsection (1) where - (a) in its opinion the modification is not of a minor nature .... {c) if the application to modify seeks the modification of an approval, the approval was the subject of an appeal to the Court and the Court has made a determination on the appeal ... Whilst under s. 4. 15 ( 1 ) an application may be made by the respondent by election to a Local Authority to seek a modification of the approval, the Local Authority has no power under s. 4. 15 ( 2) where the modification is in relation to an approval granted by the Court to approve such an application. A Local Authority pursuant to s.4.15{2)(c) is expressly excluded from approving an application to modify where the Court has made a determination on the appeal. The Court itself is not expressly or by necessary implication excluded from exercising such power to approve a modification. Such a view is consistent with a legislative intent that in those matters where the Court has made -- 7 of 8 -- 5 a determination, only the Court should have known to modify either an approval or any relevant condition. In the circumstances herein whilst the respondent by election had a right to make an application to the respondent to modify the approval, the respondent has no power whereby it could approve such an application. That however does not prevent the respondent by election from making such an application to the respondent as the decision of the respondent on such an application refusing to approve in accordance with its statutory obligation creates rights whereby the respondent by election could appeal to the Court for a review of that decision under s. 4. 15 ( 10) of the Act or alternatively under s. 4. 1 5 { 11 ) where the Local Authority fails to decide such an application within the statutory period. 'l'urner v. Miriamvale Shire Council ( 1992) Qd.R. 675. Although Turner v. Miriamvale Shire Council (supra) was decided under other legislation, I am satisfied that the principles therein stated are applicable to the relevant provisions under the Local Government (Planning and Environment) Act. The jurisdiction to "review" a decision pursuant to s.4.15(10) and s.7.2 is different to that jurisdiction conferred by s.7.1 of the Act whereby a person may in the circumstances therein set out appeal to the Court. For the reasons above I find that the Court has no jurisdiction to hear the application by the respondent by election to seek a variation of the terms of the order made on 18 November 1992. I dismiss the application. -- 8 of 8 --