complication that surfaced is the one which Mr Skoien advised

It seems that nothing has been returned by the post office. A

search has been made of the body corporate records which has

produced some discrepancies in recorded addresses. The

applicant has taken the cautious approach of writing to

multiple addresses to cover all bases, so to speak.

The Court of Appeal's decision in Oakden Investments Pty Ltd v

Pine Rivers Shire Council [2002] QCA 470; [2003] 2 QdR 539 indicates that

section 4.1.53 of the IPA might be invoked to overcome the

absence of a consent required under section 3.2.1. Section

4.1.53, which was relied on by Judge Dodds at first instance

(see [2003] QPELR 117) has been replaced by section 4.1.5A

which appears to me far more general in its scope and

considerably easier for an applicant to satisfy. By subsection (2), the Court is given a very broad discretion to "deal with the matter in any way the Court considers appropriate". The section comes into play because of the inability of the applicant to comply fully with section 3.5.33(3) by demonstrating consents of all relevant owners. I accept that the situation is different from that considered by the Court of Appeal in Bartlett v Brisbane City Council [2003] QCA 494.

The only decision upon section 4.1.5A of which I'm aware is

that of Judge Rackemann in Evans v Gold Coast City Council [2004] QPEC 19. In that case, his Honour accepted he had jurisdiction to apply the new section to overcome the lack of an owner's consent which the IPA required. However, his Honour declined to exercise the discretion favourably to the applicant having regard to his view that it had genuine concerns which the evidence showed to be well founded to explain its position - the objector, the party who withheld consent had well founded bases for doing so.

There is no suggestion from any quarter here of any desire to

oppose what the applicant presently wants. Both last week and

today, the bailiff called outside the Court for appearances by

the owners of lots 1 to 39 in Body Corporate FV 4006. Nobody

turned up. Notwithstanding that, I would think that if some

substantial injustice in the way the Court will proceed today

can be demonstrated by any of those lot owners, the Court

would accord such owners the ordinary right of a person in

whose absence an order is made to approach the Court to seek

There can't be any guarantee that such an exercise would

succeed. In that regard, reference might be made to the

decision in Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42 where Judge Brabazon QC considered there was little merit in the position of the owner which had exercised its right to withhold a necessary consent; the claims made were called "tenuous". This was held not to vitiate the development application which had proceeded to the stage

In all of the circumstances, the Court will make an order in

the form which Mr Chadwick has helpfully prepared. For reasons of simplifying the task of identification of the conditions which apply to the development, the order annexes a new conditions package minus the fold-out plans. In respect to those plans, there's no change from the existing conditions

package. What changes is the content of condition 5(b) and

Mr Chadwick's order has been amended by me to include specific

provision that the application should be determined pursuant

to section 4.1.5A notwithstanding that section 3.5.33(3) hasn't been fully complied with. (I might mention that the plans show that with the possible exception of lot 1, which may have its own security arrangements, the parts of the car park where those occupying lots 1 to 39 might leave their vehicles are locked off in separate areas in one corner on two levels so that it can be confidently expected that the lot owners don't face any new difficulties whatsoever in enjoying the car park for its principal purpose of accommodating their vehicles.)

There would be an order in terms of the draft which is