24/12 TOWERS v BUILDING AND DISPUTE RESOLUTION COMMITTEE & ORS [2012] QPEC 28

(Searles, DCJ - 18 April 2012)

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Appeal – s 479 of the Sustainable Planning Act 2009 – Error or mistake in law – Lack of jurisdiction – irrelevant consideration considered – Costs

Facts: This was an appeal to the Planning and Environment Court pursuant to the s 479 of the Sustainable Planning Act 2009 (Qld) (SPA) against a decision of the Building and Dispute Resolution Committee (BDR Committee).

The Appellant originally appealed to the BDR Committee pursuant to s 527 of SPA against the decision of Burnett Country Certifiers (BCC) as Assessment Manager, at the direction of the Bundaberg Regional Council as Concurrence Agency, to refuse a development application for a BCA Class 10a structure, being a gazebo with an open sided shade structure with thatched roof associated with a swimming pool (Bali Hut) at the Appellant’s land at 14 Balaam Drive, Kalkie in Bundaberg.

The Bali Hut was constructed in 2008 without approval and came to the Council’s attention in 2011.

The Council considered that the location of the Bali Hut infringed the six metre setback requirement of the Queensland Development Code (QDC) and would require a siting concession from the Council as concurrence agency for a building development application. An application was lodged by the Appellant on 20 May 2011.

In the particulars of his application, the Appellant set out, among other considerations, that the relocation of the Bali Hut was not a viable option.

The application was refused by BCC as the assessment manager, on the direction of Council as concurrence agency.

The Appellant appealed to the BDR committee against the refusal.

The BDR committee determined that the position of the Bali Hut provided no setback to the Charlotte Court frontage of the site and concluded that the application should be refused on the following grounds:

  1. “neighbouring properties and the wider area are characterised by a streetscape of landscaped gardens and house facades created by consistent front setbacks;
  2. the appellant’s proposal conflicts with this established character;
  3. although the structure is an open sided structure, it faces the swimming pool internal to the site, presenting its rear to the street;
  4. while the QDC makes exceptions for gatehouses at the street alignment, the structure is two to three times the prescribed dimensions for such a structure;
  5. the structure presents a blank face to the street when combined with the adjoining paling fence;
  6. the grass thatched roof, although subjectively attractive, is insufficient to render an acceptable streetscape; and
  7. the structure could be re-positioned onto available space on site, withoutcontravening QDC 1.2.”

The Appellant then appealed to the Planning and Environment Court against the BDR Committee’s decision.

The Appellant submitted that the issue of relocating the Bali Hut should not have been considered by the BDR committee in making its decision.

The question before the Planning and Environment Court was whether the BDR Committee had considered an irrelevant consideration in refusing the Appellant’s application, and if it had considered an irrelevant consideration, whether the consideration of such had materially affected the decision.

The Council argued that the Appellant had raised the issue of relocation in his original application and as such, the issue was open to the address of the BDR Committee.

Decision: The Court held that:

  1. the issue of relocation was squarely raised by the Appellant himself and that the BDR Committee referring to it was considering a relevant matter raised by the Appellant. The BDR Committee did not take into account an irrelevant consideration
  2. if the issue of relocation was an irrelevant consideration considered by the BDR Committee, it is not such as to have affected the decision the BDR Committee arrived at. It is not sufficient to simply identify an irrelevant consideration. Rather it must be such that it materially affected the decision.

25/12 CHRISTIAN OUTREACH CENTRE V TOOWOOMBA REGIONAL COUNCIL & ANOR [2012] QPEC 29

(Searles DCJ - 18 April 2012)

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Application for declaration of invalidity of Council’s decision – whether a permissible change – Wednesbury Unreasonableness – Meaning of likely – Discretionary considerations – ss 369 and 367 Sustainable Planning Act 2009

Facts: This was an application for declarations and orders in relation to a decision by Toowoomba Regional Council (Council) to approve a request to make a permissible change to a development approval under section 369 of the Sustainable Planning Act 2009 (SPA) made pursuant to section 456 of the SPA. The development approval was for a material change of use - impact assessable, retail showroom, indoor recreational facility (gym) and food outlet (café/restaurant) and was granted by the respondent on 6 July 2009 with respect to land located at 471-493 Hume Street, Kearneys Spring, Toowoomba (HSBG Land).

The development approval was to facilitate the development of a new Masters Home Improvement store on the HSBG Land.

The Applicant owned adjoining land to the south of the HSBG Land, on which it operated a church and college.

The Co-Respondent’s change application sought the following changes to the development approval:

  1. deletion of the indoor recreational facility (gym);
  2. variation of the approved building envelope by housing the proposed development in a single building rather than three separate buildings; and
  3. relocation of the approved access from approximately half way along the Hume Street frontage to a position approximately 140m south of the approved access at the common boundary between the HSBG Land and the Applicant’s land.

The change application required assessment against section 367 of the SPA. Section 367(1)(c) of SPA relevantly provided that:

A permissible change, for a development approval, is a change to the approval that would not –

(c) for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed”.

In a meeting held during Council’s assessment of the change application, a representative of the Applicant had informed the Council that they would definitely consider making a submission if the original application were made again in the proposed amended form, primarily due to concerns about traffic impacts.

At the time of the meeting with Council, the Applicant’s representative had formed a preliminary opinion as to the impact of the proposed change on the Applicant’s land but required input from traffic and acoustic experts.

By letter dated 1 November 2011 the Applicant’s solicitors wrote to the Council in relation to the proposal, stating that:

“Our client is concerned about the adverse impacts that may arise from the request and is in the process of taking advice from its town planners and legal team about whether or not the proposed change is in fact a permissible change pursuant to section 367 SPA.

We anticipate being in a position to confirm our client’s position to Council within 10 business days.”

The Council replied by letter dated 4 November 2011:

“Toowoomba Regional Council received the application for a request to change an approval on 21 July 2011 and despite your letter it has been determined that Council will continue to assess the application in accordance with section 375 of the Sustainable Planning Act 2009.”

On 7 November 2011 the Council approved the change application.

The Applicant sought the following declarations:

  1. that the change, the subject of the request to change an existing approval, was not a permissible change within the meaning of section 367 of SPA; and
  2. that the decision to approve the change request was of no force or effect.

The Co-Respondent submitted that:

  1. the proceedings were brought for an ulterior motive due to the breakdown in negotiations with the Applicant in relation to an easement;
  2. it had at all times acted in good faith;
  3. Council participated in the proceeding to support its decision;
  4. it had commenced construction of the development in accordance with the development approval; and
  5. the Applicant’s concerns as to traffic and noise impacts were other new or materially increased impacts which should be rejected.

In hearing the Application, the question to be determined by the Court was whether the Council’s decision was one which was so unreasonable that no reasonable Council could have made it.

Decision: The Court held that, the change was not a permissible change within the meaning of section 367 of the SPA:

  1. an application for declarations and orders made under section 456 of SPA may invoke, in appropriate circumstances, the principle of Wednesbury unreasonableness sourced in the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
  2. Council, acting reasonably, in execution of its statutory role, could not have formed any opinion but that there was “a substantial chance, a real not remote chance regardless of whether it was more or less than fifty percent” that the Applicant would make a properly made submission as envisaged by section 367(1)(c)
  3. any suggestion that the applicant’s concerns were attended by irrationality or unreasonableness was rejected
  4. it was not for the Court to determine the merits of any traffic or acoustic issues and section 367(1)(c) did not require any merits assessment of the grounds in any submission that the Applicant may make, but rather only if it was likely one would be properly made
  5. the Wednesbury test was satisfied. The decision approving the change application was thereby invalid
  6. it did not automatically follow that the declaration should be made as the declaration was a discretionary matter
  7. the fact that the Co-Respondent had commenced construction was a discretionary factor which held some weight. However, the discretionary factors considered were not individually or collectively sufficient to deprive the Applicant of the entitlement to the declarations sought.

26/12 WESTLINK PTY LTD v LOCKYER VALLEY REGIONAL COUNCIL & ORS [2012] QPEC 31

(Searles DCJ - 27 April 2012)

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Appeal - Application for a Development Permit – Conflict – Extent of Conflict – Sufficient Grounds to Justify Approval of Proposal Despite Conflict – s 3.5.14(2)(b) Integrated Planning Act 1997 – South East Queensland Regional Plan 2009 - 2031 – Gatton Planning Scheme.

Facts: This was an appeal against a refusal by the Respondent (Council) to grant development permits to the Appellant (Westlink) for:

  1. material change of use - electricity generation infrastructure; and
  2. environmentally Relevant Activity (ERA) no. 14 – electricity generation; and
  3. operational works – vegetation clearing.

The subject site was located within the Rural General Zone under the provisions of the Planning Scheme for Gatton Shire (Planning Scheme) and was located in close proximity to the Gatton Gas and Compressor Station, the Gatton Electrical Bulk Supply Substation and the Roma to Brisbane Gas Pipeline.

The original appeal went before the Planning and Environment Court in May 2011 and the Court allowed the appeal, partly on the basis that there was no conflict between the proposal and the relevant planning scheme as had been contended by Council. 

Council subsequently appealed the decision to the Queensland Court of Appeal. It was held by that Court that there was a conflict with s. 4.1.2(k) of the Planning Scheme and the matter was remitted back to the Planning and Environment Court for determination.

Under the Planning Scheme, the Specific Outcomes for the Rural General Zone s. 4.12 (k) provided that:

All other defined uses and other not defined uses, not specifically identified in Table 1 are not consistent with the purpose of the zone.”

As Table 1 did not list electricity generation infrastructure as a defined use, therefore that use was impact assessable. It was contended by Westlink and endorsed by the Court of Appeal decision that had the proposal been proposed by a public entity it would have been characterised as a ‘Special Purpose’ and therefore would have been code or self assessable under the Planning Scheme

The Court sought to determine whether, given the conflict with the scheme, notably s. 4.12 (k), there were sufficient grounds to justify the approval of the proposal despite the conflict, pursuant to s. 3.5.14(2)(b) of the Integrated Planning Act 1997 (IPA).

Westlink argued that the conflict was minor. Council contended that the wording of s. 4.12(k) was unequivocal and attached significant importance on a use being characterised as consistent or not consistent.  It argued that the Court’s approach should be one of restraint with respect to the inconsistency in particular with regard to the scale of the proposal.

With respect to whether there were sufficient grounds to justify the approval, Westlink contended that the proposal:

  1. assisted in meeting the community’s increasing demand for electricity;
  2. facilitated a more sustainable and fast start, peak power generation which would produce substantially less greenhouse gas emissions;
  3. was in an ideal location to supplement the growing public demand;
  4. would contribute to reducing the cost of electricity;
  5. would provide an economic stimulus for the local region; and
  6. would facilitate the outcomes sought by the South East Queensland Regional Plan 2009 – 2031 and advance the purpose of IPA to achieve ecological sustainability.

Council considered that the proposal would negatively impact the rural character and unacceptably impact views from the Gatton township.

Decision: The Court held, in allowing the appeal, that:

  1. looking at the Planning Scheme as a whole, s. 4.12(k) was aptly categorised as a default provision and a product of a decision of the authors of the scheme that any qualifying non-consistent use was not prohibited but would need to satisfy Council on good town planning grounds
  2. on the spectrum of a minor to major conflict, the conflict tended towards the minor rather than major
  3. there were sufficient grounds within the IPA s 3.5.14(2)(b) to justify approval of the proposal notwithstanding the conflict, namely:
    1. had the proposal been developed by a public utility it would qualify as a Special Purpose within the Planning Scheme, by which s. 4.12(k) would have had no application;
    2. the proposal would be of benefit to the community by assisting with meeting its increased demand for electricity;
    3. the proposal was ideally located to meet the public demand for electricity at peak times given its co-location with the Roma to Brisbane Gas Pipeline, along with the Gatton Gas Compressor Station and the Gatton Electricity Bulk Supply Sub-Station;
    4. the proposal was located amongst not incompatible land uses;
    5. the proposal was physically disconnected, well screened and separated from rural residential localities;
    6. the proposal would provide an economic stimulus to the community; and
    7. the proposal was consistent with the outcomes sought to be achieved by the South East Queensland Regional Plan 2009-2031 and purposes of both IPA and the Sustainable Planning Act 2009.

27/12 HOLCIM (AUSTRALIA) PL V BRISBANE CITY COUNCIL & ORS [2012] QPEC 32

28/12 LEWIS v TOWNSVILLE CITY COUNCIL & ORS [2012] QCA 99

(Margaret McMurdo P, Muir JA and Douglas J - 17 April 2012)

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Whether there was an error of law sufficient to warrant the granting of leave to appeal under Sustainable Planning Act 2009 (SPA) s 498 - Whether the primary judge erred in the construction of Integrated Planning Act (IPA) s 3.5.14(2) – Whether the primary judge made a factual finding without evidence – Whether the primary judge referred to any irrelevant considerations – Whether there was denial of procedural fairness – Whether the primary judge failed to have regard to material evidence in determining the noise issue – Whether the correct test was applied when deciding that the proposed use was in conflict with the planning scheme – Whether the primary judge failed to give proper consideration to the applicant grounds of appeal.

Facts: This was an application for leave to appeal to the Court of Appeal from a decision of the Planning and Environment Court.

The applicant conducted a business carting raw materials to and from locations in the Townsville region. The applicant made a development application for a development permit for a material change of use for a Transport Depot and Landscape Supplies combined with an environmentally relevant activity for a motor vehicle workshop in respect to land which he owned at Black River Road, near Townsville. 

At the relevant time, under the provisions of the City of Thuringowa Planning Scheme, the applicant’s land was in the Rural 40 Sub Area of the Rural Planning Area Code. Under these provisions, the material change of use for the landscape supplies and the Transport Depot were Code Assessable and Impact Assessable respectively.

On 27 March 2010, Council refused the application on the basis that the proposal:

  • compromised the achievement of the Desired Environmental Outcomes (DEO’s) in the planning scheme contrary to s 3.5.14(2) of the Integrated Planning Act 1997 (Qld) (IPA);
  • would result in a incompatible and inconsistent use in the location, contrary to the Character Statement of the Rural Planning Area; and
  • was in conflict with Performance Criteria P6 and P7 of the Rural Planning Area Code.

The applicant appealed to the Planning and Environment Court on the grounds that the achievement of the DEO’s and Character Intents for the Rural Planning Area within Council’s planning scheme were not compromised by the proposal and that the site was directly accessible to the established haulage routes and nearby quarries. The applicant contended that amenity issues related to noise, dust and traffic could be effectively managed through suitable conditions and that there was an identified community need for such a proposal in this locality.

On 1 June 2011, the primary judge dismissed the appeal on the basis that the proposal compromised and conflicted with the achievement of Council’s DEO’s, Character Intents and Rural Planning Area Code contrary to s 3.5.14(2) of the IPA. It was considered that the proposed uses were industrial and not rural in nature, and that there were viable alternative sites in industrial locations.

In respect to need, the primary judge was not satisfied that any planning need had been established by the applicant, and furthermore that there had not been suitable evidence provided to demonstrate that alternative sites had been considered.

The applicant applied for leave to appeal to the Queensland Court of Appeal under s498 of the SPA on a number grounds, specifically that:

  • the primary judge had misconstrued s 3.5.14(2) of the IPA by misunderstanding the distinction between compromising the achievement of a DEO and conflicting with the planning scheme under s 3.5.14(2)(a);
  • the primary judge had regard to an irrelevant consideration in respect to the question of community need;
  • the evidence produced with respect to noise and dust emission management had not been properly considered;
  • only some of the factors relating to character had been considered in respect to determining the extent of conflict within the planning scheme;
  • errors had occurred in relation to the interpretation of industrial and rural land uses within the planning scheme;
  • proper consideration to all of the grounds submitted by the Appellant to justify the granting the appeal despite the conflicts with the planning scheme had not been considered.

Decision: The Court held, in refusing leave to appeal, that:

  • the terms of s 3.5.14(2) of the IPA made clear the legislature intended that decisions on development applications distinguish between, on the one hand, applications which compromise the achievement of relevant DEO’s and must be refused; and on the other, development applications which conflict with the planning scheme, but sufficient planning grounds exist to justify the approval despite the conflict
  • a development application which can not exist together with the achievement of a DEO must compromise the DEO
  • the primary judge was correct in his finding that the proposed development both compromised the achievement of the relevant DEO’s under s 3.5.14(2)(a) of the IPA and conflicted with the planning scheme with insufficient grounds to justify granting the development application despite the conflict (s 3.5.14(2)(b) of the IPA)
  • there was clearly an issue at the hearing and relevant under the planning scheme about whether a viable alternative location existed for the proposed development. That issue was capable of indirectly raising an aspect of need in the sense of economic supply and demand. The applicant’s contention that the primary judge erred in respect to the determination of community need was not made out
  • the primary judge was entitled on the evidence to conclude that the noise issue remained a real concern which may not have been amenable to appropriate conditions
  • the primary judge had not denied the applicant an opportunity to adduce evidence about the noise issue and had made it clear in his reasoning, that he was doubtful as to whether the conditions imposed to alleviate noise were sufficient to eliminate potential impacts from noise upon the rural amenity
  • the primary judge’s reasons did not suggest that that he failed to consider both existing and planned character, and also the impact of existing development approvals on that character
  • the conclusions, that the development application was in conflict with the planning scheme; that the applicant did not demonstrate sufficient grounds to justify approval notwithstanding that conflict; and that the planning scheme DEO’s four and six were compromised by the proposed development, flowed rationally from the view of the evidence taken by the primary judge.

29/12 GILLION PTY LTD v SCENIC RIM REGIONAL COUNCIL & ORS [2012] QPEC 33

(Jones DCJ - 2 May 2012)

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Preliminary point – whether referral required to Chief Executive administering the Transport Infrastructure Act 1994 (Department of Transport and Main Roads) – failure to refer application to State agency– whether extractive industry use – whether water extraction from aquifer constituted extractive industry for the purposes of the Sustainable Planning Regulation – Court excusal power – ss. 250, 251, 252, 254 and 440 of the Sustainable Planning Act 2009 (SPA) - Transport Infrastructure Act 1994 - Schedule 11 of the Sustainable Planning Regulation 2009 (SPR)

Facts: This was an application brought by a number of Co-Respondents to an appeal made by Gillion Pty Ltd (Gillion) against the decision of Scenic Rim Regional Council (Council) to refuse its development application for a commercial groundwater extraction use in Mount Tambourine. The preliminary point for determination was:

“Whether the development application was required to be referred to the Chief Executive administering the Transport Infrastructure Act 1994”

The proposed use was impact assessable under the relevant planning scheme and fell within the definition of “Commercial Ground Water Extraction”. The planning scheme also separately defined “Extractive Industry”. It was uncontroversial that under the development application the projected production of extracted water would be between 23.5 – 29 million litres (or 23.5 – 29 million tonnes) per annum.

Schedule 11 of the SPR identifies the trigger and threshold for referral in respect of development impacting on State-controlled roads. Item 22 of Schedule 11 provided:

“Extractive industry (including mineral processing, refinery and smelter)”

with the relevant threshold being:

“Using machinery having an annual throughput of product of 10,000 t.”

The applicants argued that Schedule 11 of the SPR should not be read down to make it subordinate to the meaning given to special activities in the Council’s planning scheme. Gillion argued that the definition of Commercial Ground Water Extraction was distinct from Extractive Industry and accordingly, there was no scope for the operation of Schedule 11 of the SPR. The Department of Transport and Main Roads had also provided a letter stating that it did not consider itself to be triggered as a referral agency for the same reasons argued by Gillon.

The Court considered the rules of statutory interpretation to determine whether the proposed development fell within the purpose and threshold in Schedule 11. 

Decision: The Court held that:

  1. when the words ‘extractive’ and ‘industry’ were given their ordinary meaning and when read in context with the other relevant provisions of the SPA and the SPR, an “Extractive Industry” for the purposes of Schedule 11 was one concerned with the extensive extraction of a natural resource. Groundwater was a natural resource
  2. the SPR could not be read down so as to make it subordinate to the provisions in the planning scheme
  3. the proposed development was an “extractive industry” for the purpose of Schedule 11
  4. there was a failure to comply with the requirement that the development application be referred to the Department of Transport and Main Roads
  5. the non-compliance should be excused, however the development application would have to be referred to the Department of Transport and Main Roads for its proper consideration.

30/12 MALOUF & ANOR v GOLD COAST CITY COUNCIL [2012] QPEC 36

(Robertson DCJ - 11 May 2012)

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Application for permissible change – whether proposed changes to conditions amount to “permissible change” – whether amending car parking arrangements and basement constitute a “permissible change” – whether conflict with planning scheme code – ss. 367, 369, 374 and 375 of the Sustainable Planning Act 2009 (SPA).

Facts: This was an application by Naaman George Malouf and George Mark Malouf (the applicants) who had the benefit of a development permit for a seven-storey apartment building on land at 197-199 Jefferson Lane, Palm Beach. The approval was originally pursuant to a consent Judgment of the Court made on 27 February 2007. That approval included a condition requiring the applicants to dedicate 215m2 of the beachfront land to the respondent and construct a seawall along the beachfront.

The applicants sought to amend three conditions:

  1. Condition 1 – to change the approved plans;
  2. Condition 41 – to change the design of the building’s basement; and
  3. Condition 51 – which required certification as to the height and setback of the basement.

The issue before the Court was whether the proposed changes to the conditions were permissible changes in accordance with section 367 of the SPA. More particularly, the Court had to enquire whether the changes to the approval would result in substantially different development. 

In addition to the relevant statutory provisions of the SPA relating to the assessment of a permissible change, the Court also considered Statutory Guideline 06/09, which provided:

“A change may result in a substantially different development, if the proposed change:

dramatically changes the built form in terms of scale, bulk and appearance

significantly impacts on traffic flow and the transport network, such as increasing traffic to the site

introduces new impacts or increases the severity of known impacts…”

The respondent submitted that the proposed changes were in conflict with PC1 of The Ocean Front Land Code (the Code) in the Gold Coast City Council planning scheme. Other issues were raised by the Council in respect of traffic safety, the basement access ramp gradient, car parking heights and visual amenity.

Decision: The Court held that, the application be granted for the reasons that:

  1. in assessing the proposed changes against PC1 and AS1 of the Code, strict compliance was not required and the focus was on PC1 in a scheme which was performance based
  2. Australian Standards were not textbooks for the design of parking stations
  3. the changes contemplated by the proposed new conditions did not constitute a substantially different development; that was, one that “is different in essence or essentially, materially or importantly different”
  4. even if the proposed changes did conflict with the Code, there were sufficient grounds to approve the changes notwithstanding the conflict.

31/12 MACADAM v MORETON BAY REGIONAL COUNCIL & ANOR [2012] QPEC 38

(Jones DCJ - 28 May 2012)

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Proposed residential development adjacent to rural residential land – where appellants operate an orchard on two rural residential lots – where proposed residential development adjoins southern boundary – whether higher density residential subdivision likely to threaten ongoing operation of existing orchard – whether proposed residential subdivision threatens good quality agricultural land – whether proposed residential subdivision is sufficiently buffered and separated from existing orchard use – whether adequate provision made for park and/or nature reserves – whether proposed development results in conflict with the planning scheme – ss. 3.2.8, 4.1.5A, 4.1.50(2)and 6.1.3 Integrated Planning Act 1999 (Qld) – ss. 4.11 and 4.4(5A) Local Government (Planning and Environment) Act 1990 – ss. 380 and 819 Sustainable Planning Act 2009 (Qld)

Facts: This was a submitter appeal against the Respondent Council’s decision to approve the Co-Respondent’s proposed development, which comprised a subdivision to create 36 residential allotments. The Appellant operated an orchard on land to the immediate north of the proposed development that involved the spraying of mature orchard trees and seedlings and the use of chainsaws and other farm plant and equipment.

The main issues for determination in the appeal related to:

  1. public notification;
  2. whether a proposed park dedication was sufficient;
  3. various environmental issues, and in particular, the alleged need to provide a koala habitat area;
  4. alleged conflicts with the Respondent Council’s planning scheme;
  5. whether there was sufficient need to justify approval of the development; and
  6. good quality agricultural land.

The issue in relation to public notification was whether the Council had no power to decide the application because the public scrutiny requirements of section 3.2.8 of the Integrated Planning Act 1997 (IPA) had not been complied with. The Appellant alleged that the Council failed to display the adverse response of the then Environment Protection Agency (EPA), which was a referral agency for the subject development application, and that as a result, the Appellant and other interested parties were prejudiced.

In relation to the issue of park dedication, the Appellant contended that the proposed dedication of 13,563m2 was not adequate and that 10 per cent of fair–average land ought to be dedicated as park. In support of his argument, the Appellant contended (among other things) that the payment of a financial contribution to the Council in lieu of dedicating 10 per cent of fair-average quality land (which was at the Respondent’s discretion under the planning scheme) would result in a “boon” for the Co-Respondent for which the residents, particularly those on small blocks, would bear the cost. 

The Appellant argued that if the Co-Respondent was not required to dedicate 10 per cent of fair-average land then, in the alternative, a development condition should be imposed requiring the Co-Respondent to retain as much native vegetation as possible, which was identical to a condition imposed on a sub-division development to the immediate north of the Appellant’s land. In particular, the Appellant submitted that this was because there was a need to provide a koala habitat area and gave evidence to the effect that koalas had been seen from time to time on the subject land.

In relation to this issue, the town planners for Council and the Co-Respondent gave evidence that there was sufficient parkland planned for the locality and that a condition requiring a monetary contribution was a reasonable and relevant requirement of the proposed development.

A number of matters were also raised by the Appellant in relation to conflicts with the planning scheme. However, the evidence of the town planners for Council and the Co-Respondent was that the proposed development was not in conflict with the planning scheme.

In relation to need, the Appellant contended that there was no need for any further residential land in the subject locality. The Appellant pointed to advice he had received from the Respondent Council in June 2005, to the effect that an analysis of residential land did not identify a need to make the Appellant’s land available for urban residential development within the life of the plan, and also to the slow rate of building and lack of development activity in surrounding areas.

The Respondent’s town planning evidence indicated that there was a need for smaller residential land in the subject location.

The final issue for determination related to whether the proposed development allowed for appropriate buffers between residential development and legitimate farming operations.

The Appellant argued that the proposed three-metre wide buffer along the northern boundary of the proposed development (which was to be heavily vegetated) was not wide enough, and that complaints would be made about his farming activities and pressure brought on him to close down his orchard business. The Appellant proposed a buffer in the order of 30-40 metres, which may have resulted in the loss of four residential allotments. In support of this argument, the Appellant contended (among other things) that his land was good quality agricultural land (GQAL) for the purposes of State Planning Policy 1/92 (SPP1/92) and its associated Planning Guidelines: Separating Agricultural and Residential Land Uses (Separation Guidelines), which recommended a buffer of at least 40 metres.

The Appellant’s land was zoned rural residential and had been identified for residential development in the Council’s Strategic Land Use Plan and was included in the urban footprint of the South East Queensland Regional Plan. Each of the parties’ town planning experts agreed that the planning intent for the Appellant’s land was that it was to be developed in the future for residential purposes.

Decision: The Court held that:

  1. while there was probably a failure on the part of the Respondent to fully comply with the public scrutiny requirements of section 3.2.8 of the IPA, and that no material prejudice was suffered by the Appellant or any other interested member of the public. This was particularly so in circumstances where the proposed development was consistent with the planning scheme, was supported by a detailed ecological assessment report and the EPA did not oppose the development subject to suitable buffers and stormwater management
  2. there was no basis for concluding that the Respondent should not have accepted a monetary contribution in lieu of more park area
  3. that the conditions imposed on the proposed development were not identical to those on the neighbouring development was of no real significance, as each case has to be treated on its own merits. There was no reason to conclude that the conditions imposed on the proposed development were not adequate
  4. the proposed development was not in conflict with the planning scheme. For there to be a genuine conflict, there must be some real and identifiable variance or disagreement, which was not the case in this appeal
  5. there was a need for further residential land in the subject locality
  6. the operation and effect of the Separation Guidelines were not directly relevant to the appeal. However, although the Separation Guidelines did not apply, that did not mean that no buffer was required between the Appellant’s land and the proposed development
  7. the evidence was not sufficient to conclude that the proposed buffer along the northern boundary of the proposed development was adequate
  8. apart from concerns about the proposed buffer, there were no grounds for upholding the appeal.

32/12 COPLEY v LOGAN CITY COUNCIL & ANOR [2012] QPEC 39

(Jones DCJ - 30 May 2012)

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Application to strike out appellant’s notice of appeal pursuant to Rule 171 of the Uniform Civil Procedure Rules 1999 (UCPR) – or, in the alternative, orders pursuant to r 293 of the UCPR that summary judgment be given for the co-respondent against the appellant in respect of all or part of the appellant’s notice of appeal – tests to be applied - whether appellant’s grounds of appeal disclose no reasonable cause or are otherwise frivolous or vexatious

Facts: This was an application to strike out a submitter appeal (in whole or in part), or in the alternative, seek summary judgment (in whole or in part) against the respondent / appellant. On 21 December 2011 the respondent / appellant appealed to the Planning and Environment Court against the respondent council’s decision to approve the applicants / co-respondents’ development application. 

The respondent / appellant’s grounds for appeal against the development application covered issues relating to boundaries of Crown land and public roads, the density of additional lots, the presence of parklands, koala and wildlife habitat, traffic and flooding areas. The applicants / co-respondents sought to have the appeal struck out.

The Planning and Environment Court Rules 2010 did not expressly provide for the striking out of appeals or for the granting of summary judgment. 

Decision: The Court held that:

  1. rules 171 and 293 of the UCPR can be relied upon in the Planning and Environment Court to strike out pleadings or give summary judgment where the grounds of appeal are manifestly unarguable and disclose no reasonable cause of action
  2. with the exception of the flooding issues, the respondent / appellant’s grounds of appeal were manifestly unarguable and disclosed no reasonable cause of action and therefore those grounds were struck out
  3. as the grounds of appeal relating to flooding were arguable (and were not clearly doomed to failure), it would not be appropriate to give judgment in favour of the applicants / co-respondents in respect of part only of the appeal.

33/12 BRAUDMONT PTY LTD & ORS V GOLD COAST CITY COUNCIL [2012] QCA 140

(Muir and Fraser JJA and Martin J - 29 May 2012)

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Environment and planning – courts and tribunals with environment jurisdiction – Queensland – Supreme Court – leave to appeal – where applicants seek leave to appeal under s 498(2) of the Sustainable Planning Act 2009 against decision setting aside subpoena to Chief Executive Officer of respondent Council and ordering applicants pay costs in relation to setting aside – where applicants are owners of residential property with boundaries contiguous to path constructed by respondent Council – where applicants sought declarations, and consequential orders, against respondent Council in Planning and Environment Court for unlawful construction of path – where trial commenced and adjourned part heard – where applicants came into possession of email sent by councillor’s personal assistant to constituent regarding path – where applicants issued subpoenas against Chief Executive Officer of respondent Council, five councillors and councillor’s personal assistant who sent email – where respondent Council applied to set aside subpoenas – where applicants abandoned reliance on all subpoenas other than subpoena directed to Chief Executive Officer of respondent Council – where primary judge ordered subpoena directed to Chief Executive Officer of respondent Council to be set aside for abuse of process – where applicants seek liberty to further subpoena to Chief Executive Officer of respondent Council seeking same documents as in subpoena that was set aside – where applicants argued documents describe in subpoena relevant to issues in litigation and “on the cards” that it would materially assist applicants – where applicants argue primary judge wrongly disregarded particulars in deciding pleadings did not raise any issue concerning subjects in subpoena – where applicants argued subpoena should be varied if too wide – whether the primary judge erred in setting aside subpoena – whether leave to appeal should be granted

Facts: The applicants sought leave to appeal under s 498(2) of the Sustainable Planning Act 2009 (SPA) against a decision setting aside their subpoena to the Chief Executive Officer of Gold Coast City Council and ordering the applicants to pay the Council’s costs of and incidental to the application to set aside the subpoenas.

Each applicant owned residential property fronting an unformed road reserve, Pacific Parade, at Currumbin. In May 2009, Council constructed a path on Pacific Parade, contiguous with the eastern boundaries of the residential properties fronting Pacific Parade. The path was apparently constructed on the landward side of, and partly on, misaligned, discontinuous boulder walls buried under the coastal dune.

In April 2010, the applicants sought declarations that the path had been constructed unlawfully, without an effective development permit.

The hearing was adjourned, part heard, in May 2011.

Following the adjournment of the hearing, the applicants came into possession of an email dated 4 October 2011 which had been sent by a councillor’s personal assistant to a constituent. The email included a statement that a section of path in front of Hedges Avenue at Mermaid Beach had not been done “because Hedges Avenue has an inconsistent ‘A’ line which means that realignment of the boulder wall will be necessary before the pathway is constructed”. The “A-line” was referred to in Council’s Planning Scheme Policy No 7: Foreshore Rock Wall Design and Construction as the “leading edge” of the boulder walls (in the applicants’ submission) or of walls to be constructed (according to Council’s submission).

The applicants issue subpoenas against Council’s Chief Executive Officer, five councillors and the councillor’s personal assistant who had sent the email. The Council applied to set aside the subpoenas on the grounds that they were issued for an improper purpose, did not disclose a legitimate forensic purpose, were an abuse of process, were tantamount to disclosure, were an impermissible fishing exercise, and were oppressive and not in compliance with the approved form and Rule 415 of the Uniform Civil Procedure Rules 1999 (UCPR).

The primary judge heard Council’s application on 14 November 2011. Towards the end of the hearing, the applicants abandoned reliance upon all of the subpoenas other than the subpoena directed to the Chief Executive Officer. The primary judge found that the subpoenas did not comply with the approved form as required by r. 415 of the UCPR, were an abuse of process and should be set aside, saying that the issue of the subpoenas was “…an ill-conceived, opportunistic attempt on the part of the applicants to embark upon a fishing exercise to seek to force the CEO and Councillors to produce documents unrelating to any matter in issue before the court”.

In relation to the issue of oppressiveness, the primary judge found that the evidence from Council’s legal information unit coordinator indicated that a minimum of 16 days continuous work would be required to comply with the subpoenas.

The substantive order sought by the applicants’ draft notice of appeal was that the applicants be at liberty to issue a further subpoena to the Chief Executive Officer seeking the same documents set out in the original subpoena which was set aside by the primary judge.

The subpoena required the production of documents described in a schedule, all of which concerned the boulder walls. The central question in the proposed appeal was whether the documents described in the subpoena were relevant to the issues in the litigation.

At first instance, the applicants had submitted that the documents sought by the subpoena were relevant to allegations raised in two paragraphs of their fourth further amended originating application, in relation to which they had purported to give further and better particulars (although such particulars had not been requested by Council).\

In seeking leave to appeal against the primary judge’s decision, the applicants argued that:

  1. the primary judge wrongly disregarded the unrequested particulars when deciding that the pleadings did not raise any issue concerning the subjects mentioned in the subpoena;
  2. the primary judge had not made a finding that the subpoena was oppressive and that his statement about the issue of oppressiveness amounted merely to a recitation of the evidence; and
  3. if the subpoena was too wide, it should be saved by appropriate variation.

Decision: The Court held in refusing the application with costs, that:

  1. it was not accepted that, under the guise of supplying particulars which had not been requested, the applicants were entitled unilaterally to expand their case or reintroduce a case which they had earlier abandoned. In any case, the subpoena did not limit the documents sought by reference to the allegations contained in the relevant paragraphs of the fourth further amended originating application
  2. the primary judge’s conclusion that the issue of the subpoenas constituted an abuse of the Court’s process was plainly informed by the oppressive nature of the subpoena as revealed by unchallenged evidence. There was no error in the primary judge’s conclusion that the issue of the subpoena in the terms in which it was issued was an abuse of process
  3. the applicants had not sought to amend the subpoena, describe any narrower class of documents which might legitimately be sought, or address those topics in their submissions. Leave to appeal should be refused because there was no prospect that the Court would make an order that the subpoena be re-issued in the same terms.

34/12 MARIDAHDI EARLY CHILDHOOD COMMUNITY V TOOWOOMBA REGIONAL COUNCIL & ORS [2012] QPEC 40

(Dorney QC DCJ - 5 June 2012)

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Appeal from refusal – application for material change of use to “educational establishment” – whether DEOs compromised – whether conflicts with planning scheme – planning need – whether “sufficient grounds” – traffic / amenity issues

Facts: This was an applicant appeal against Council’s decision to refuse a development application for a material change of use for an “educational establishment”, being a primary school, on land located at South Street, Rangeville in Toowoomba. The proposal involved the establishment of a 200 student school in three stages.

At the time the development application was made in December 2009, the Integrated Planning Act 1997 (IPA) and Council’s Toowoomba City Council Planning Scheme 2003 were in force. At the time of the hearing, the Toowoomba Regional Planning Scheme 2012 had been drafted and was to commence on 1 July 2012.

Under the 2003 planning scheme, the site was located within the Neighbourhood Residential Zone and, within that zone, the Escarpment Residential Precinct. An educational establishment was a “not preferred” use in that zone, however under the proposed 2012 planning scheme it would be a “consistent” use on the site.

At the time of the hearing, the following issues remained in dispute:

  1. whether the development application compromised the achievement of DEOs 1, 2, 3 and 4 of the 2003 planning scheme;
  2. the nature and extent of any conflict with the 2003 planning scheme;
  3. whether there were sufficient grounds to justify approval of the development application despite any conflict;
  4. what weight was to be given to the 2012 scheme; and
  5. whether any traffic or amenity concerns warranted refusal of the development application.

The Court also considered whether the application could be part approved.

Decision: The Court held, in dismissing the appeal, that:

  1. in terms of the approach of the authorities when assessing a need for a “community use”, while clearly subject to the application of the general principles, such a use must have the effect that a latent unsatisfied demand for such a facility may well be a matter of greater significance to the community in question than those needs that are referrable to the obtaining of such things as petrol or reaching a cinema complex. The need for a community use may be significant when considering amenity concerns, because sooner or later some part of the community “must make a sacrifice”, with the degree to which the amenity is harmed being compensated for by the possible proximity of the lawful use
  2. in dealing with the Neighbourhood Residential Zone and the Escarpment Residential Precinct within it, the conclusion that could be reached with respect to the potential school catchment was that it was not significantly locally based. Accordingly, while there was a need in the planning sense of the term, the school was not “location dependent”
  3. the proposal did not threaten the achievement of the DEOs
  4. even though it was in evidence, alternative sites were irrelevant because the appeal was about a development on the subject site and nowhere else. It was not the function of the Court to determine whether other sites did or did not exist, to enquire whether they were any “better”, or to enquire about the reasons a particular site was purchased for the development
  5. the additional traffic associated with Stage 3 of the proposal would lead, by the implementation of it, to the likelihood of an unacceptable impact on the amenity of the residents of South Street. Hence, conflicts issues should be considered on the basis that Stage 3 would not be approved, should approval otherwise be determined
  6. the recurring theme in the evidence of the submitters in relation to general amenity was one based on expectation arising from the 2003 planning scheme. On a proper interpretation of that scheme, the potential had always existed for such a proposal
  7. the 2012 planning scheme was entitled to significant, but not overwhelming, weight
  8. even with a modified proposal, there were not sufficient planning grounds which would justify the decision to approve the development proposal despite the identified conflicts.

35/12 MAHASIDE PTY LTD v SUNSHINE COAST REGIONAL COUNCIL & ANOR [2012] QPEC 41

(Long SC, DCJ - 8 June 2012)

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ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where applicant lodged an application for development approval under the Integrated Planning Act 1997 (Qld) – where part of the relevant land was classified as a “State resource prescribed under a regulation” – where the regulation required the appellant to provide resource entitlement evidence – where 3.2.1(5) of IPA required that such evidence be submitted with the application – where the applicant did not provide such evidence with its application and the respondent could not lawfully accept the application as being ‘properly made’ – where the Sustainable Planning Act 2009 (Qld) subsequently enacted and IPA repealed – where applicant unsuccessfully made application for excusal of non-compliance under s 820 of SPA and then subsequently purported to change the development application to remove that part of the land in respect of which there was non-compliance – whether the application was ‘made’ before the commencement of SPA so as to be within s 802 of SPA.

Facts: This was an application made by Mahaside Pty Ltd (Mahaside) for declarations in relation to a development application for a reconfiguration of a lot originally lodged with the Sunshine Coast Regional Council (Council) on 11 October 2004.

The Council refused the application on 11 April 2007.

Mahaside lodged an appeal against the Council’s refusal on 10 May 2007.

During the appeal, the Council raised issues of non-compliance with s 3.2.1(5) of the Integrated Planning Act 1997 (Qld) (IPA) (as amended and in force from 4 October 2004) which would render the development application “not properly made” within the meaning of s 3.2.1(7).

One aspect of the development involved the construction of a road over unallocated State land to facilitate access to some of the lots in the proposed reconfiguration.

The unallocated State land was found to be a State resource as prescribed under item 12 of Schedule 10 of the Integrated Planning Regulation 1998 (Qld) and that the specifically prescribed evidence had not been provided to satisfy s 3.2.1(5) of the IPA.

Mahaside made an application to the Court seeking orders under s 818(2) of the SPA that the development application was a properly made application for the purposes of s 3.2.1 of the IPA and in the alternative, that the non-compliance rendering the development application invalid be excused under s 820 of the SPA.

That application was dismissed on 20 August 2010. Consequently, the appeal was also dismissed by consent on 29 April 2011.

On 20 May 2011 Mahaside gave notice to the Council of a change to the original development application purportedly made under s 3.2.9(1) of the IPA. The change involved the removal of the road connection through the unallocated State land and effectively removed the issue of providing evidence in relation to a State resource and purported to convert the application to a “properly made application”.

On 24 October 2011 Mahaside made an application to the Court seeking declarations that:

  1. the development application was an application made under the repealed IPA but not decided before the commencement of the SPA for the purposes of s 802 of SPA;
  2. the amended application was a properly made application under the IPA; and
  3. the Council accept the application (as amended) as properly made and deal with and decide the application under the IPA as though the SPA had not commenced.

In support of its application, Applicant submitted that:

  1. the development application was made but not decided under the repealed IPA, before the commencement of the SPA and was therefore a development application within the contemplation of s 802(1) of the SPA;
  2. pursuant to s 802(1) of the SPA, in dealing with and deciding the development application, the repealed IPA continues to apply as if SPA had not commenced; and
  3. in order to have been “made” before the commencement of SPA, an application need not have been a properly made one under the IPA, provided that it has been lodged and was capable of being dealt with in some legally effective way (relying on the authority of Stockland v Maroochy Shire Council [2011] 1 Qd R 77).

The Respondent argued that the development application was not “made” before the commencement of the SPA within the meaning of s 802(1) and relied on the authority of Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2011] 1 Qd R 226.

The Applicant submitted that the Metricon decision should be distinguished on the basis that it concerned the construction of a different statutory instrument and did not concern the meaning of s 802(1) of the SPA.

The questions for the Court to decide were:

  1. whether the application had been “made” and if so, whether it was made before the commencement of the SPA; and
  2. where an application was made after the commencement of the SPA, whether the unchanged application was of a type that was within the meaning of s 802(1) of the SPA so that the provisions of the repealed IPA, including s 3.2.9, were continued in application to it.

Decision: The Court held that:

  1. having regard to s 3.2.1(10) of the IPA, the development application was not one that could ever have been accepted under s 3.2.1(9) of IPA. It was therefore one which prior to it being changed, in order to obviate the critical non-compliance, could not have resulted in a development approval being given
  2. the purported change to obviate the non-compliance was not made before the commencement of the SPA. At that stage the application may not have been lawfully accepted or decided and the prospect of subsequent change to the application did not in any way alter that circumstance
  3. the application remained, up to and including the commencement of the SPA and repeal of the IPA, in a state where it was not capable of being dealt with in some legally effective way
  4. the words “but not decided” in s 802(1) of the SPA and the provision in s 802(2) of the SPA continuing the application of the repealed IPA for the purpose of “dealing with and deciding” development applications to which the section applies, clearly implied that what was in contemplation was an “existing application” that was capable of being decided
  5. to be “made” and be such an application, a development application must, at the time of commencement of SPA, have been so capable of being decided. In this respect, the phrase “dealing with and deciding” was a composite and to be read in a conjunctive sense, rather than separately or disjunctively
  6. the development application was not capable of being dealt with and decided at the commencement of the SPA and therefore was not “made” under the repealed IPA.

36/12 WOLTER GROUP HOLDINGS PTY LTD v BRISBANE CITY COUNCIL & ANOR [2012] QPEC 42

(RS Jones, DCJ - 13 June 2012)

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Minor Change – where development application lodged by the applicant sought to vary the respondent’s planning scheme (City Plan 2000) in a way that would make future applications in respect of the land code assessable for use as consistent with the Multi-Purposes Centre (MP4) – Convenience Centre subject to assessment criteria and applicable codes – whether an application to change the development application originally sought so as to make the proposal (where relevant) self-assessable rather than code assessable was a minor change for the purposes of s 350 of the Sustainable Planning Act 2009.

Facts: This was an application brought under s 350 of the Sustainable Planning Act 2009 (SPA) for an order that the proposed change to the development application was minor for the purposes of SPA.

On or about 27 June 2008, the applicant lodged an application for a preliminary approval to override the planning scheme for a material change of use for a Centre Activity Outside Centre (Convenience Centre) under the provisions of the Brisbane City Council’s City Plan 2000. The proposal was for a small shopping centre located on the south-eastern corner of the intersection of Illaweena Street and Beaudesert Road, Drewvale.

By the date of hearing, the only live issue in the appeal related to the determination of an appropriate location for a traffic U-turn facility to provide access to and from Illaweena Street.

On 20 Dec 2011, the traffic issue was determined in favour of the applicant, and the Court made orders that further hearing of the appeal be adjourned to allow for the formulation of appropriate conditions and that the Court would hear from the parties about the need for any further orders.

On 14 March 2012, the applicant filed an application that sought an order that the development application be changed in relation to the way it sought to vary the planning scheme, in particular, that Centre Activities (except Hotel and Nightclub) be carried out generally in accordance with specified plans and be made self-assessable.

Pursuant to the transitional provisions of the SPA, the substantive appeal had been decided under the Integrated Planning Act 1997 (IPA), however the parties agreed that the application was to be determined by reference to s 350 of the SPA.

The relevant focus at the hearing of the application was on whether the change to the development application was a change to how the preliminary approval would operate and whether that constituted a change to the “type of development approval” sought under s 350 (1)(d)(iii) of the SPA. The applicant contended that on the basis of the history of the development application, the level of scrutiny, and degree of controversy provoked to that point, the change was intended to avoid the necessity of further development applications for material change of use and building work being assessable against the planning scheme. The applicant considered that while the proposed change affected how the preliminary approval operated, it did not amount to a change of the “type of development approval” under s 350 (1)(d)(ii) of the SPA that is that it was not a change from a preliminary approval to a development permit. The respondent contended that the changes to the development application proposed effectively converted the application from a preliminary approval for which future applications were required to an application whereby authorised development would have occurred without further applications being required.

Decision: The Court held, in refusing the application, that:

  1. it would be wrong to conclude that the meaning of “development approval” prescribed in Schedule 10 of the IPA constrained the meaning of the word “type” where used in s 350 of the SPA. Where the word “type” appears in s 350, it was a reference to the kind or class of development approval being sought which is capable of being distinguished in a real and material way, by reference to its substantive characteristics, from another kind or class of development approval
  2. the proposed change to the development application would have significant ramifications. It would change from being an application that envisaged various development approvals being sought which would be assessed by reference to a number of applicable codes, to one where it was intended that no further development applications would be required and the development would be compliant where it satisfied the acceptable solutions prescribed by one code only
  3. the development approval being sought would result in a materially different assessment regime than that initially applied for
  4. when the words in s 350(1)(d)(iii) of the SPA are given their natural and ordinary meaning and read in context, there was no basis for limiting that subsection to the types of changes contended for by the applicant. The construction contended for by the respondent was not only consistent with the natural and ordinary meaning of the words used, but more likely to reflect the intentions of the legislature
  5. the proposed change was not a minor change for the purposes of s 350 of the SPA. Substantive characteristics of the approval being sought differed from those initially sought to such an extent as to amount to a change of the type of development approval sought.

37/12 COPLEY v LOGAN CITY COUNCIL & ANOR [2012] QPEC 43

(Jones DCJ - 21 June 2012)

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Costs – Section 457 Sustainable Planning Act 2009 – Section 4.1.23 Integrated Planning Act 1999 – where applicants/co-respondents substantially (but not wholly) successful in an application to strike out appellant’s appeal – whether elements of the appeal were instituted to delay or obstruct and/or were otherwise frivolous or vexatious – whether costs should be awarded on indemnity basis or standard basis – where it was determined that a number of grounds of appeal were manifestly unarguable and disclosed no reasonable cause of action, whether that constituted frivolous or vexatious proceedings for the purposes of awarding costs

Facts: This was an application for costs brought by the applicants / co-respondents following their largely successful application to have the respondent / appellant’s grounds of appeal struck out (for all but one ground of appeal). The applicants / co-respondents sought costs for the hearing, as most of the grounds were found to be manifestly unarguable and disclosing no reasonable cause of action. The relevant tests for awarding costs related to whether the proceedings were instituted to delay or obstruct, or were frivolous or vexatious.

The one issue that was not struck out (flooding) was the major issue and the one most likely to occupy the majority of the hearing time. Of the four grounds of appeal that were struck out, the respondent / appellant was aware of evidence relating to two of the issues (survey and traffic issues) that should have made it clear that he had no reasonable prospect of succeeding. Furthermore, he did not seriously challenge this evidence, yet continued to press the two grounds of appeal.

The applicants / co-respondents sought indemnity costs.

Decision: The Court held that:

  1. section 457 of the Sustainable Planning Act 2009 applied to the application for costs, rather than section 4.1.23 of the Integrated Planning Act 1997, which both parties relied upon. The outcome of the application would have been the same regardless of which legislation was applicable
  2. the general purpose of a costs order was not to punish but to compensate
  3. the lack of an entirely successful strike out application does not preclude the recovery of costs. However the grounds of appeal must be more than just unsupportable, but rather must be frivolous or vexatious
  4. the appeal was initiated for bona fide reasons, out of a desire to act in the public interest. Furthermore, the court should be cautious in ordering costs against citizens as there is a public interest in not discouraging citizens with genuine grounds from pursuing litigation
  5. the respondent / appellant pursued two grounds of appeal despite having information that showed them to be hopeless causes, and therefore acted in a frivolous, if not vexatious way, which enlivened the court’s discretion to award costs against him for those two grounds
  6. the costs order against the respondent / appellant for the two frivolous grounds should be made on the standard basis, not on an indemnity basis. For indemnity costs to be awarded, more serious misconduct was generally required.

38/12 COMISKEY GROUP (A FIRM) V MORETON BAY REGIONAL COUNCIL & ANOR [2012] QPEC 44

(Searles DCJ - 29 June 2012)

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Application – Integrated Planning Act 1997 - Minor Change - Meaning of Minor Change – Flooding Impacts – Visual Amenity

Facts: This was an interlocutory application by the Appellant for an order that proposed changes to its development proposal constituted a minor change within section 4.1.52(2)(b) of theIntegrated Planning Act 1997 (Qld)(IPA) and section 821 of the Sustainable Planning Act 2009 (Qld) (SPA). 

The development proposal related to a residential housing estate at Todds Road, Lawnton which involved the development of 216 allotments over 12 stages, including the development of 79 allotments on a created island known as the “Island Platform”. Access to the island was by way of a bridge. The proposal was impact assessable.

The matter was decided under the IPA (by operation of sections 802(2), 819(5)(a) and 819(6) of SPA), however under section 821(2)(b) of SPA, the relevant definition of “minor change” was that set out in s. 350 of the SPA.

The proposed changes to the proposal consisted of raising the level of the Island Platform (an area of 8.9 ha) and the height of the access bridge by 1.1 metres and changing the island bridge design from a BEBO Arch bridge to a Land bridge involving ten culverts. There had been two previous minor change applications regarding the project, one granted and one dismissed.

The main question for the court was whether the proposed changes amounted to “substantially different development” and therefore were not a “minor change” under s. 350 of the SPA.

Statutory Guideline 06/09 set out when a change may result in a “substantially different development”. It was common ground that the two relevant criteria to the application related to whether the proposed changes:

  1. dramatically changed the built form in terms of scale, bulk and appearance; and / or
  2. introduced new impacts or increased the severity of known impacts.

The application was opposed by the Council on the basis that:

  1. the new plans represented a substantial change from a flood risk perspective; and
  2. the proposed changes included unacceptable visual amenity aspects.

Much of the decision turned on the evidence of the engineers. The Appellant’s flood expert engineer focussed on storm and flood events and concluded that the proposed changes did not introduce new flooding impacts. The Council’s expert disagreed and said the plans represented a substantial change in flood risk. The Appellant’s visual amenity engineer said there would be not be a significant change in visual appearance however the Council’s expert said there would be as the new bridge was significantly different and there was a lack of screening.

Decision: The Court held, in granting the application, that:

  1. the proposed changes must be considered in light of the entire development application
  2. the proposed changes did not dramatically change the built form in terms of scale, bulk and appearance or introduce new impacts or increases the severity of known impacts
  3. the increased elevation of the island platform, bridge and road approach would not introduce new flooding impacts
  4. the difference in the visual impact of the development between the two plans was not significant so far as the vegetation screening was concerned. The increase in the height of the bridge and road or its design would not have a greater visual impact than the structure proposed under the original plan
  5. the changes proposed were considered minor changes within the meaning of that term in the SPA s 350(1)(d).

39/12 CLAREMONT HOLDINGS PL V LOGAN CITY COUNCIL & ANOR [2012] QPEC 45

(Searles DCJ - 29 June 2012)

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Development Application (Superseded Planning Scheme) – where site included in the Particular Purpose Zone under the Logan Planning Scheme 1997 – where Logan Planning Scheme 2006 had taken effect by date of application and included land in non-urban zone – where South East Queensland Regional Plan (SEQRP) Draft Amendment 1 Draft Regulatory Provisions (DRP) had come into effect seven months before application – where land was in the Regional Production Area under the SEQRP – whether land was zoned for urban purposes under an “IPA Planning Scheme” – whether superseded Logan Planning Scheme 1997 was an “IPA Planning Scheme” for the purposes of the DRP pursuant to s. 6.1.4 of the Integrated Planning Act 1997 – whether Logan Planning Scheme 2006 had superseded the Logan Planning Scheme 1997 such that it was no longer an “IPA Planning Scheme”

Facts: This was an application for the determination of the preliminary issues described in the relevant order as follows:

  1. the preliminary points in this appeal (‘the Preliminary Points’) are identified as being whether:
    1. the site was in the Particular Purpose (Tennis Court) zone under the Logan Planning Scheme 1997;
    2. a Tennis Court is an urban purpose;
    3. at the date the Application was made the premises were zoned for an urban purpose under an IPA Planning Scheme for the purpose of s. 3(2) of the Draft South East Queensland Regional Plan 2005 – 2026 Regulatory Provisions Amendment 1; and
    4. sections 3(1) and (3) of the Draft South East Queensland Regional Plan 2005 – 2026 Regulatory Provisions Amendment 1 do not apply to the application”.

It was common ground that the first two issues should be answered in the affirmative and the third issue would determine the outcome of the fourth issue.

On 26 October 2006, the Appellant (Claremont) lodged a development application seeking a material change of use for a relocatable home park at Ferry Road, Carbrook. The application was a development application (Superseded Planning Scheme) (DA(SPS)) within s. 3.2.5 of the Integrated Planning Act 1997 (IPA) made under the Logan Planning Scheme 1997 (Superseded Scheme).

Under the Superseded Scheme, the land was zoned “Particular Purpose (Tennis Courts)” and designated in the Superseded Scheme’s Strategic Plan as open space. 

At the time of the application, the Logan Planning Scheme 2006 (Current Scheme) was in effect. Under the Current Scheme, the site was contained in a non-urban zone.

Council accepted the application as properly made and by acknowledgment notice dated 23 October 2009, advised Claremont of its decision to proceed with impact assessment under the Superseded Scheme.

The South East Queensland Regional Plan (SEQPR) Draft Amendment 1 Draft Regulatory Provisions (DRP) had come into force in March 2006, seven months before the application by Claremont. Under the SEQRP the land was in the Regional Landscape and Rural Production Area. Section 3 of the DRP stated as follows:

“DIVISION 2 – PROVISIONS AFFECTING PLANNING SCHEMES – INTEGRATED PLANNING ACT 1997 – SECTION 2.5 AT A.12(A) – (C)

Fig. 3 Urban Activities

3. Urban activities outside the Urban Footprint

 (1)    a material change of use of premises for an urban activity is assessable development requiring impact assessment to the extent the premises are in the –

(a)    Regional Landscape and Rural Production Area; or

(b)    Rural Living Area; or

(c)    Investigation Area.

(2)    subsection (1) does not apply to the extent the -

(a)    premises is zoned for an urban purpose under an IPA planning scheme; or

(b)    activity is outdoor recreation.

3)    in addition to any relevant matters applying under a planning scheme for assessing and deciding a development application to which subsection

(1) applies, the application complies with these regulatory provisions only if –

(a)    the activity is minor or local in character; or

(b)    for premises in a rural village – the development is consistent with the planning intent for the rural village under the planning scheme; or

(c)    if paragraph (a) or (b) do not apply –

(i)     the locational requirements or environmental impacts of the development necessitate its location outside the Urban Footprint; and

(ii)    there is an overriding need for the development in the public interest”.

The Co-Respondent was the successor to the Office of Urban Management, a concurrence agency for the application. By letter dated 22 March 2011, that agency directed Council to refuse the application on the following basis:

“The proposal has not demonstrated compliance with the South East Queensland Regional Plan 2005 – 2026 draft amendment 1 (SEQ Regional Plan) Regulatory provisions for the following reasons:

  • the Applicant has not demonstrated the locational requirements or environmental impacts of the development necessitates its location outside the urban footprint;
  • the Applicant has not demonstrated there is an overriding need for the development in the public interest”.

By decision notice dated 9 December 2011, Council refused the application.

The question for determination was whether the land was, at the date of the application, zoned for urban purposes under an “IPA Planning Scheme”, in which case, Claremont argued, DRP ss. 3(1) and (3) would not apply. 

It was common ground that:

  1. for the purpose of the determination of the Preliminary Points, a tennis court was an urban purpose
  2. what was applied for in the DA(SPS) constituted an “urban activity” within s. 3(1) of the DRP; and
  3. that the land, at all material times, was located outside the Urban Footprint under the SEQRP.

Claremont relied on s. 6.1.4 of the IPA to say that the Superseded Scheme was, at the time of the application, not only a “Transitional Planning Scheme” under IPA, but also an “IPA Planning Scheme”. Accordingly, the subject premises zoned for urban purpose under the Superseded Scheme were so zoned under an “IPA Planning Scheme” for the purposes of DRP s. 3(2)(a) and it followed that DRP s. 3(1) and (3) did not apply to the development application.

The Co-Respondent argued that the introduction of the Current Scheme replaced the Superseded Scheme within s. 6.1.4(1) of the IPA, resulting in the Superseded Scheme no longer having the status of an “IPA Planning Scheme”. It relied upon the specific provisions of the DRP to argue that there was no proper basis upon which it could be said that the expression “IPA Planning Scheme” in s. 3(2)(a) of the DRP could be interpreted as being a reference to a “Transitional Planning Scheme” deemed by s. 6.1.4 of the IPA to be an “IPA Planning Scheme”.

Decision: The Court held that:

  1. given the force of the relevant IPA provisions, it was clear that, upon the Council electing to assess the application under the Superseded Scheme, that scheme was the only scheme deemed to be in existence for the purpose of dealing with the application and any subsequent appeal. As artificial as it may appear given the introduction of the Current Scheme, the fact was that for the purpose of the application, that scheme was deemed not to be in force
  2. there was nothing that preserved any partial operation of the Current Scheme so as to render the development application, at the point of application and up to the point of Council’s election, to be treated as an application under the Current Scheme, which would result in the relevant zoning being non-urban under an “IPA Planning Scheme”
  3. if the Current Scheme was deemed not to be in force, it could hardly be an “IPA Planning Scheme” within DRP s. 3(2)(a) in considering the subject application. The DRP was to be interpreted by reference to the relevant planning scheme in force and the only one in force was the Superseded Scheme. For the Superseded Scheme to be in force to the exclusion of the Current Scheme, but not be an “IPA Planning Scheme” for the purpose of DRP s. 3(2)(a) was contrary to the clear legislative intent of s. 6.1.4 of the IPA
  4. the Superseded Scheme remained an “IPA Planning Scheme” for the purposes of the subject application. It followed that the subject land constituted a premises zoned for an urban purpose under an “IPA Planning Scheme” within DRP s. 3(2)(a).

40/12 ABACUS FUNDS MANAGEMENT V SUNSHINE COAST REGIONAL COUNCIL [2012] QPEC 46

(Robin QC DCJ - 29 June 2012)

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Developer appeal against refusal of impact-assessable development application – site adjoins applicant’s established major tourist resort whose character (“small clusters of buildings set in extensive parklands and naturally vegetated areas”) is sought to be preserved by the precinct intent under the planning scheme – building height limited by planning scheme to two storeys with the possibility of three storeys “surrounding the lake” – proposal for 158 self-contained apartments (providing an accommodation type in demand but not available in the resort) in three large buildings of four storeys and one of three storeys placed end to end, half of the apartments facing the rear of the resort across its car park, half facing designated wetlands with minimal setback – applicable codes contemplated significant separation or buffering for protection of wetlands – visual amenity issues for road and Mudjimba Beach, also the Resort – whether established “need” for the proposal (as tourist or residential accommodation) and other factors overcame conflict with the planning scheme – significance of earlier approvals, one for material change of use (MCU) for similar buildings (with somewhat smaller footprints) contained in a court order made by consent, one allowing clearing of the site and its wetland vegetation (implemented) and construction of a podium or platform (said to provide a “hard edge” effective to protect the adjacent wetlands) – MCU approval extended once by Council to prevent lapsing, but subsequently lapsing when Council refused two further requests (in refusals subject to pending appeals) – whether 2005 approvals (for 56 or so units) were a “starting point” – 2005 approval and current proposal compared – current proposal said to be “over development”

Facts: This was a developer appeal against the Council’s refusal of an impact assessable development application for the development of land for self contained units within the Twin Waters Resort site.

The Resort was a hotel/conference facility with 366 rooms which had been operating for more than 20 years. The Appellant sought development approval for 158 additional units in four buildings from three to four storeys high, which would fulfil a need for self contained accommodation site and provide guests with access to the facilities of the Resort.

The development application was assessed having regard to matters specified in section 3.5.5 of the Integrated Planning Act 1997 (Qld) (IPA) and decided in accordance with sections 3.5.11 and 3.5.15 of IPA. Under section 819(4) of the Sustainable Planning Act 2009 (Qld) (SPA) the relevant regime was that set out SPA. Section 3.5.14 of IPA stated that the decision must not compromise achievement of a Desired Environmental Outcome (DEO) or conflict with the planning scheme unless there were sufficient grounds. The relevant DEOs were 2.2 Environmental Management and 2.7 Urban Design, Heritage and Character.

The relevant planning scheme was Maroochy Plan 2000 but the Resort development had been approved and largely constructed before it came into effect.

The planning scheme provisions imposed strict caps on further development within the Twin Waters Resort Planning Precinct, which the proposal exceeded.

The Appellant contended that existing development approvals granted in 2005 rendered those caps of less or no relevance. The predecessor Council had approved four three story buildings and the Appellant submitted that the 2005 approvals set the benchmark for development of the site so that future proposals were to be assessed on the basis that what really mattered was the extent to which they departed from what was approved in 2005. It submitted that the Council should not have refused to acknowledge their relevance or significance in its assessment of the proposal.

The Council submitted that the proposal was over development, there were environmental concerns regarding the wetlands and visual impact concerns.

The Precinct Intent for the Twin Waters Resort Planning Precinct imposed a two storey limit (three storeys potentially permitted if surrounding the lake). The proposal conflicted with the Precinct Intent as it was for three four storey buildings and one three storey building removed from the lake.

Sections 8.4.5, 8.4.6 and 3.9.1 of the Strategic Plan forming part of Maroochy Plan 2000 were considered because the Council contended that the development would mean the character and amenity of Twin Waters Resort would be deleteriously affected by the proposal 

Decision: The Court held, in dismissing the appeal, that:

  1. the Council was not bound to any proposition that anything it decided to do previously was a correct or appropriate decision. There was no reason in principle why any Council was estopped or precluded from contending that a planning decision was inappropriate (except, of course, that it could not prevent implementation of any current approval) or should not be extended
  2. even if the Council officers had given indications that the Appellant’s development application would be favourably entertained that would not fetter the Council in its decision making
  3. the 2005 approvals did not have the effect of moving the starting position so that no more need be justified in the current assessment than the respects in which the proposal exceeded what had previously been approved. While past approvals were of statutory relevance and to that extent were to be respected, the Appellant’s new and different proposal should succeed or fail on its own merits, the starting point being no development on the site. The Council was entitled to take whatever view of the current development application it considered appropriate
  4. the proposal conflicted with the planning scheme. The likely visual impact of the proposal, the proposal’s failure to provide any screening or other buffer on-site and serious concerns about the quality of the housing accommodation and recreation facilities meant there were insufficient grounds to approve the proposal and overcome the conflict with the planning scheme
  5. the visual impacts of the proposal were all adverse
  6. while the Appellant had established a planning need, that need was not sufficiently great or pressing to overcome the conflict.

41/12 WALLACE v BRISBANE CITY COUNCIL [2012] QPEC 47

(R S Jones DCJ - 13 July 2012)

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Preliminary approval for building work – demolition of character house – whether building represented “traditional building character” – whether building contributed positively to the visual character of the street – s.496(2)(a) Sustainable Planning Act 2009

Facts: This was an appeal against the refusal of an application for a preliminary approval for building work, being the demolition of a pre-1946 dwelling.

The application had been refused on the basis of conflict with the Demolition Code. Performance Criterion P1 required that the building must not represent traditional building character, or must not contribute positively to the visual character of the street.

The dwelling was situated on the western side of Quay Street. Contrary to the more common situation, the house fronted the Brisbane River and the rear of the dwelling faced the street. It was also set back from the street a distance of some four to five times that of the majority of the dwellings on the eastern side of the street.

Over time, the character of the street had changed with the introduction of recent development, including the demolition of original houses, and renovations, alterations and restoration of original buildings. The majority of new, and in many cases, more extravagant, dwellings were constructed on the western side of Quay Street fronting the Brisbane River.

The Draft Bulimba District Statutory Neighbourhood Plan was currently undergoing its second State interest check, and had been placed on display for public comment. Council submitted that the demolition of the dwelling would be in conflict with the Draft Plan.

Decision: The Court held, in allowing the appeal, that:

  1. while alterations to the dwelling clearly detracted from its original pre-1946 condition and character, they did not rob it entirely of that character. Looked at objectively, the dwelling was still able to be identified as having pre-1946 traditional building characteristics
  2. the reasonable visitor would leave Quay Street with the distinct impression that it was comprised of a mixture of architectural styles
  3. on balance, having regard to its minor contribution to the visual character of this part of Quay Street, and, in particular, the significant physical differences between it and other relevant dwellings, the subject dwelling did not relate in any meaningful way to the existing traditional building character of Quay Street
  4. the demolition of the dwelling would have no noticeable impact on, or cause any loss of significance from the existing traditional building character in the street
  5. the Court did not consider the Draft Plan to be of any assistance to the Respondent in this proceeding. To allow the appeal would not result in the types of conflicts and adverse impacts on future town planning considered in cases such as Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 and Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224
  6. to stand in the way of demolition and redevelopment was a serious and far reaching limitation upon a land-owner’s rights. Accordingly, the Court should adopt a cautious approach and, in circumstances where existing laws and policies were satisfied, it would be wrong to inflict such limitations based on proposed changes to the Planning Scheme, save for where such a result was clearly justified. This was not such a case.