7/14 BORAL RESOURCES (QLD) PTY LTD V BUNDABERG REGIONAL COUNCIL [2014] QPEC 8

(Rackemann DCJ - 13 March 2014)

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Planning and Environment – where the applicant requested a permissible change to a development approval relating to a quarry – where approval is limited by condition to a time about to expire – where applicant will be seeking a substantive extension to the period for which the approval has effect – where applicant sought interim extension of the permit to enable determination of the substantive application for approval

Facts: This was a request by the Applicant for a permissible change to a development approval relating to the Applicant’s quarry located in Bundaberg.

The Applicant’s existing approval was the subject of a permissible change request to extend the period to which the approval had effect over the quarry for a further five years.

The matter was brought before the Court because the development approval to which the Applicant sought the extension was to expire. 

The change sought at the hearing was to extend the period for which the approval had effect, pending the determination of the broader request.

Decision: The Court held, in allowing the change:

It was unlikely that any person would make a properly made submission objecting to the change if the circumstances allowed that to occur.

The change would extend the life of the permit, only for so long as was necessary, for the matter to otherwise be determined.

8/14 ANDREW PARKER & ANOR v PROFESSIONAL CERTIFICATION GROUP PTY LTD & ANOR [2014] QPEC 9

(Rackemann DCJ - 24 March 2014)

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Planning and environment – appeal from a decision of the Building and Development Dispute Resolution Committee – where appellants applied to the respondent for a permit to facilitate the construction of a retaining wall and new boundary fence – where Committee’s reasons contained reference to issues which were not raised in the grounds of appeal nor the hearing – where the Committee made findings on the basis of a private meeting and inspection with adjoining owners conducted after the hearing and without notice to the parties – whether appellants were denied procedural fairness and a reasonable opportunity to be heard

Facts:  This was an appeal against a decision of the Building and Development Dispute Resolution Committee (the Committee) under section 479(1) of the Sustainable Planning Act 2009 (SPA), which confirmed an earlier decision of the Respondent private certifier to refuse a development application for building works.

The building works application was retrospective, in that it was for a wall and fence that had already been constructed.  The Respondent elected not to take part in the appeal.  Brisbane City Council was a Co-Respondent to the appeal.

The issues for the Court to consider were:

whether the appellants were afforded procedural fairness by the Committee;

whether the Committee correctly applied the assessment of the building application against a condition in a higher-order development approval applying to the land, which referenced the Filling & Excavation Code in City Plan 2000; and

whether the Committee was correct in finding that the appellants had filed their Notice of Appeal against the decision notice out of time, pursuant to section 527 of the SPA.

Decision:  The Court held, in allowing the appeal and remitting the matter back to a reconstituted Committee:

The Court must be conscious in considering an appeal against a Committee hearing that such hearings are not ordinarily governed by the same rules as the Planning and Environment Court.  However, a Committee must give all persons appearing before it a reasonable opportunity to be heard.

The appellants were not afforded procedural justice by the Committee because the appellants:

were not present when the Committee met with adjoining owners;

were not given an opportunity to respond;

had not themselves viewed the wall and fence from the adjoining owners’ premises; and

were not given any opportunity to make submissions about the amenity of the wall and the fence as viewed from the adjoining property, and in particular, from the verandah, which the Committee visited.

The Committee had overlooked the fact that compliance with acceptable solutions in the Filling and Excavation Code was not mandatory, or, alternatively, it had failed to turn its mind to, or give reasons as to, how conflict with the Filling and Excavation Code was established, in its mind, in the absence of considering the relevant performance criteria.

The appellants had not been given any notice by the Registrar under section 554(4) of the SPA that the Notice of Appeal had been filed out of time.  In addition, at no time prior to the decision, including at the hearing, were the appellants advised that the timing of the filing of the notice was in issue and they were not given an opportunity to be heard or make submissions on the issue.

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9/14 ANDERSON V LOGAN CITY COUNCIL & ANOR [2014] QPEC 10

(Rackemann DCJ - 12 March 2014)

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Planning and Environment – submitter appeal against council’s decision to approved a development application for a material change of use to permit a home based upholstery business – procedure where appellant fails to appear – where home based business activities potentially suitable under the planning scheme subject to impact assessment – whether approval would result in adverse amenity impacts

Facts: This was a submitter appeal against the decision of the Logan City Council (Council) to approve the Co-Respondents’ development application for a material change of use to permit a home based upholstery business at South Maclean. The upholstery business was operated out of a shed on the Co-Respondents’ property in a rural residential type area. The Co-Respondents had already started the business under the mistaken assumption that no approval was required. The Appellant’s residence was located to the immediate west of the subject site.

There was no appearance by the Appellant or any person on the Appellant’s behalf at the hearing.

The Appellant had alleged in the grounds of appeal that the proposal would cause various amenity impacts including noise, traffic and other environmental impacts, particularly, air pollution and dust. The Notice of Appeal did not rely on any specific contravention of provisions of the relevant Beaudesert Shire Planning Scheme 2007 (Planning Scheme). However, the relevant provisions of the Planning Scheme were the subject of examination by the Council’s town planning expert.

The Co-Respondent and Council contended that there would be no significant adverse acoustic, air, quality, traffic or amenity impacts as a result of the proposal. The conditions attaching to the Council approval required, among other things, a limitation on vehicle movements and hours of operation, a limitation of two non-resident employees, and extensive landscaping. Neither the Appellant nor the Co-Respondent engaged experts in the appeal.

The Appellant’s husband had acted as the Appellant’s agent throughout the appeal up until the hearing. On the day prior to the hearing, the Appellant’s husband informed the Court that he had resigned his agency and had recommended that the Appellant have professional advice due to her “medical condition”. The Appellant did not seek an application for an adjournment.

Decision: The Court held, in dismissing the appeal:

While it was the Appellant that had not appeared, the Appellant did not bear the onus in the appeal. The onus lay on the Co-Respondent and the appropriate course was to proceed with the trial and provide the Co-Respondents with an opportunity to discharge their onus in the usual way.

The proposal would not cause noise or air quality impacts or adverse traffic consequences of any significance given the limited scope of the proposal, the number of employees to be engaged and the limits placed on vehicle movements.

The Planning Scheme contemplated activities such as the proposal as being potentially suitable subject to impact assessment. To the extent that there might be thought to be any tension with any part of the more detailed provisions of the Planning Scheme, there were sufficient grounds to justify approval for the proposal notwithstanding any conflict, given that the proposal was entirely appropriate and would not result in adverse amenity impacts.

The development application should be approved subject to conditions which would be amended from those which the Council had set. Those conditions related to the proposal’s compliance with the Parking and Servicing Code required under the Planning Scheme.

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