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Urban Potentials Pty Ltd v Southern Downs Regional Council[2015] QPEC 42

Urban Potentials Pty Ltd v Southern Downs Regional Council[2015] QPEC 42

PLANNING AND ENVIRONMENTCOURT OF QUEENSLAND

CITATION:

Urban Potentials Pty Ltd v Southern Downs Regional Council & anor [2015] QPEC 42

PARTIES:

URBAN POTENTIALS PTY LTD

(appellant)

v

SOUTHERN DOWNS REGIONAL COUNCIL

(respondent)

And

DALVEEN & POZIERES RESIDENT & LANDHOLDERS SUBMITTERS GROUP

(co-respondent)

FILE NO/S:

4575 of 2013

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 August 2015 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2015

JUDGE:

Rackemann DCJ

ORDER:

The application filed 19 August 2015 for a declaration regarding the Muirlawn Pty Ltd (ACN 011 009 653) is dismissed.

The costs of this application are reserved.

CATCHWORDS:

PLANNING AND ENVIRONMENT – EXTENDED DEFINITION OF APPLICANT – whether owner has to give consent to change in identification of the applicant – whether material showed that the new ‘applicant’ was a person in whom the benefit of the application had vested

COUNSEL:

B Job for the appellant

N Kefford for the respondent

SOLICITORS:

Anderssen Lawyers for the appellant

King & Co for the respondent

Gantt Legal for the co-respondent

  1. [1]
    HIS HONOUR:   The Appellant seeks a declaration that Muirlawn Pty Ltd is an Applicant for the development application, the subject of this appeal, and order that it be substituted for the currently named Appellant, Urban Potentials Pty Ltd.  Urban Potentials Pty Ltd is a town planning consultancy, the principal of which is Mr Hanisch.  It was the named Applicant in the development application and has quite properly been named as the Appellant in the appeal. 
  2. [2]
    Unsurprisingly, given the nature of the company, Urban Potentials was not acting on its own behalf in making a development application.  Rather, it was acting on the instructions of its client.  The submission on behalf of the Appellant is that Muirlawn Pty Ltd is a person in whom the benefit of the application vests, so as to fall within the extended meaning of the word “Applicant” in schedule 3 of the Sustainable Planning Act.  It is, of course, possible for someone other than the named Applicant to be the person in whom the benefit of the application vests.
  3. [3]
    The solicitor for the co-respondent suggested that there was some difficulty, because the ownership of the land in question has, in the meantime, changed, and there is no evidence that Muirlawn has any consent or approval of the current owners to proceed with the application.  The short answer to that submission is that no such consent is required as a precondition to Muirlawn becoming the person in whom the benefit of the application vests so as to become an Applicant.  It might mean perhaps that, in the event that the current owner is unwilling to allow any approval to be acted upon, there might a futility argument or a lack of utility argument as a matter of merit in relation to whether the development application should be granted, but it does not prevent Muirlawn being identified as a person in whom the benefit the application vests.
  4. [4]
    Although no party contended that Muirlawn did not fall within the extended definition, it is, of course, a matter for the Court to be satisfied before making a declaration.  The affidavit material relied upon was that of Mr Lucas, who is the sole director of Muirlawn.  His affidavit reveals that he was the one who provided Mr Hanisch with instructions to make the development application, but that there was no formal, written retainer agreement, and nor did he give thought to the entity which would be the Applicant.  Instead, he took Mr Hanisch’s suggestion that his firm be nominated as Applicant.
  5. [5]
    He says that it was Muirlawn which was always intended to ultimately develop and operate the wind farm, and it is that company which has paid other consultants.  Thatis perhaps suggestive that Muirlawn may be the entity in whom the application vests, but it does not go so far as to establish that.  The fact that an entity is intended to be the one who will ultimately act on an approval does not necessarily mean that it is the entity in which the benefit of the development application, as an application, vests.  The fact that such an entity is prepared to pay some of the consultant’s fees in the application itself does not, in my view, go far enough to establish that it is the entity in which the application vests.
  6. [6]
    It would not be difficult for some further affidavit material to be obtained which established a sufficient basis to conclude that Muirlawn is an Applicant pursuant to the extended definition, and of course, it is always open to Mr Lucas – to the extent that he, personally, was the person on whose behalf Urban Potentials was acting – to assign the benefit of the application to Muirlawn. 
  7. [7]
    The result then is that, at this stage, I am not prepared to grant the application that is being sought.  However, that is not because of any concern about any written consent from the owner of the land, rather that the material at the moment falls just short of establishing that Muirlawn falls within the extended definition of Applicant.
  8. [8]
    I’ll reserve the question of costs in relation to that application. 
Close

Editorial Notes

  • Published Case Name:

    Urban Potentials Pty Ltd v Southern Downs Regional Council & anor

  • Shortened Case Name:

    Urban Potentials Pty Ltd v Southern Downs Regional Council

  • MNC:

    [2015] QPEC 42

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    19 Aug 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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