Environment and Planning Qld Court Updates Digest 2008

8/2/2019 Environment and Planning Qld Court Updates Digest 2008

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Environment and planning QLD

2008 digest

Court updates digest


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Date: January 2008

Author:

Michael Walton

Planning and Environment case updates

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LUCY v OCC HOLDINGS P/L & ORS [2008] QPEC(Robin QC DCJ - 31 January 2008)

Prosecutor Appeal from Magistrates Court s222 Justices Act 1886 charge of contraventionof a condition of a development approval clearing of native vegetation by corporations andexecutive officers orders permanently staying complaints and payment of indemnity costs whether complaints invalid for uncertainty or uncertainty of the condition whether complaintsinvalid for failure to spell out the essential ingredients of the offence charged whethercomplaint sufficiently particularised

Facts: This is an appeal by Mr Lucy as a duly authorised officer of the Caloundra CityCouncil against a Magistrates decision to permanently stay his complaints against the

respondents for contravention of a condition of a development approval and ordering paymentto the respondents of indemnity costs.

The principal complaint is against the First Respondent, OCC Holdings P/L (OCC). The Third,Fourth and Fifth Respondents are executive officers of OCC (executive officers). Each ofthe executive officers cross appealed claiming that the Magistrates orders should be changedso that each complaint is dismissed rather than stayed.

A compromise was reached between the Appellant and the Second Respondent, the owner ofthe subject land, in which the Magistrates orders were set aside, but the complaint wasdismissed. The lack of conviction of the owner of the land was not fatal to the prosecutions ofOCC and the executive officers.

The prosecutions of OCC and the executive officers relate to alleged clearing of some 4.7haof native vegetation on the subject land contrary to a condition of a rezoning approval whichprovided that:

no clearing of native vegetation is to occur on the subject development sitewithout the prior written approval of Councils Environment Branch. It will benecessary for the applicant and any subsequent owners to make a formalapplication (including plan) outlining reasons for clearing and identifying theimpact of such clearing (condition).

In summary, the defendants (the respondents in this appeal) argued that each complaint wasfatally flawed for failure to include matters that ought to be there and that the condition waswithout legal effect. The defendants made a no case submission, which was rejected. TheMagistrate exercised a discretion to stay the complaints based on the uncertainty of the


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Planning and Environment Court updates 2

condition in its application and operation, and the omission of essential legal elements of theoffence from the complaint.

The primary issue to be determined in this appeal was whether the permanent stay of the

complaints should be overturned.

OCC and the executive officers argued that the complaints were defective for want ofaverment of essential legal (and/or factual elements), and therefore the Magistrate wasrequired, as a matter of law, to strike out the complaints and the Magistrate did not havejurisdiction to order a permanent stay. Alternatively, if the complaints were not so flawed as torequire striking out, that the deficiencies of the complaints cannot now be cured byamendment as the limitation period has expired (a fortiori as the prosecutor before theMagistrate expressly abandoned his right to make any application for amendment).

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

1. The condition was not uncertain. It is not reversing the onus on the prosecution toprove everything that requires proof, to proceed on the basis that the prosecutor doesso by disposing of the challenges mounted to the condition. However, the defendants(the respondents in this Appeal) are free to mount a challenge to the validity of thecondition, based on uncertainty;

2. The complaints as sworn were sufficient, as:

(1) although the particulars might have been more fully or more tightly or differentlyexpressed, there was no omission of essential ingredients, legal or factual;

(2) the charge as stated against the respondents that they contravened adevelopment approval satisfies the requirements of s47 of the Justices Act1886, as it used the words of (or an appropriate selection of words from) s4.3.3of the Integrated Planning Act 1997. It is immaterial to establish whether thecondition is part of a s4.4(5) or s4.7(5) approval under the Local Government(Planning and Environment) Act 1990. Section 4.3.3(1) of the IntegratedPlanning Act 1997 supplies its own inclusive definition to the effect thatdevelopment approval includes any condition in a development approval. Aperson in s4.3.3(1) should be given its ordinary meaning;

(3) the condition is sufficiently clearly particularised as the condition founding thecomplaint;

(4) failure to refer to s6.1.23 and 6.1.24 of IPA does not make the complaintsinvalid for failure to spell out the essential ingredients of the offence charged. Itwas not essential for the complaints to refer expressly to every statutoryprovision that might form a link in the chain of argument or proof;

(5) the burden of authority, particularly in the High Court, is strongly againstallowing mere technicalities to defeat a complaint. There must usually be somedemonstrable bias on which the defendant faces genuine confusion, such thatwhat is complained about is unclear in some way. There is nothing of that kindin this case;

(6) the Councils administrative reorganisation, so that the Environment Branchdisappeared within Council, was neither here nor there in the overall pictureand was unlikely in the extreme to have legal consequences or to result in lossof development rights that run with the land. The Court strongly inclined to the


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view that the reference in the condition to the Environment Branch of Councilshould be taken as a reference to whatever administrative branch, departmentor section of the Council that deals with environmental matters of the relevantkind.

3. The defendants no case submission ought to have been refused at the trial. The trialought to have been completed by allowing the defendants to add to the total body ofevidence, if they wished. The Magistrates Court could then have reached aconclusion, on the merits, in relation to each of the defendants before it.

4. The Magistrates order that the prosecutor make payment to the respondents ofindemnity costs necessary falls with the order for a permanent stay of the complaints.

5. Given the conclusion that the complaints were valid, there is little point in consideringthe executive officers cross appeal seeking that the complaints be struck out ordismissed.

02/08BUDERIM DEVELOPMENTS PTY LTD v MAROOCHY SHIRE COUNCIL & ORS [2008]QPEC 001(Dodds DCJ - 31 January 2008)

Applicant Appeal urban reconfiguration conflict with planning scheme whether sufficientgrounds to justify approval despite conflict s3.5.14 IPA

Facts: This is an applicant appeal against the Councils decision to refuse part of anapplication for material change of use (residential development) and reconfiguring a lot (major

urban subdivision 75 lots) over one of the three parcels of land the subject of the application(urban subdivision proposal) and against conditions imposed by Council on approval of thepart of the application for reconfiguring a lot (urban boundary realignment), preliminaryapproval for material change of use of premises overriding the planning scheme (local centremedium density residential precinct) and preliminary approval for operational work, for a localcentre, child care centre and multiple dwelling units over two of the three lots the subject of theapplication (local centre proposal).

By agreement of the parties, the local centre proposal was not considered by the Court, andhearing of this part of the appeal was postponed.

The expert town planners engaged by Council and the applicant agreed that the urban

subdivision proposal was in conflict with the planning scheme.

The issue to be determined was whether there were planning grounds sufficient to justifyapproval despite the conflict: s3.5.14 of the Integrated Planning Act 1997.

Decision: The Court held that:

1. In considering whether sufficient planning grounds exist to justify development, thenature and extent of the conflict must firstly be identified. It must be determinedwhether there are any planning grounds relevant to that part of the application which isin conflict and if the conflict can be justified on those grounds. Finally it must bedetermined whether the planning grounds in favour of the application as a whole are,

on balance, sufficient to justify approving the application despite the conflict.


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2. When all matters are considered, the appellant did not show that the urban subdivisionproposal should be approved in the face of the conflict with the provisions of theplanning scheme, as:

(1) of the various matters advanced as sufficient to justify approval (for example,the dedication of the waterway and vegetated buffer into public ownership andits enhancement as native vegetation), a number are neutral rather thanpositively supportive of what is proposed; and

(2) the evidence does not demonstrate planning or community need for the urbansubdivision proposal.


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Date: February 2008

Author:

Michael Walton


03/08WHITE V VERROCCHI [2008] QPEC 2(Rackemann DCJ - 1 February 2008)

Declarations whether development assessable or self assessable whether compliancewith acceptable solution as to carparking whether relevant acceptable solution was in theConstraint Code or LAP Place Code whether offsite spaces could be counted whetherspaces have to be actually provided or whether it is sufficient that there be an unperformedobligation for spaces in adjoining development to be made available.

Facts: The first respondent did not obtain a development permit for its pharmacy. The issuein these proceedings is whether such a permit was required.

The type of development proposed on the site is self-assessable development, but only if itcomplies with the acceptable solutions of the relevant code or codes. The only respect inwhich the development is alleged not to comply with relevant acceptable solutions is inrespect of the carparking provided.

The material change of use in this case resulted in a requirement for a greater number ofcarparking spaces than that currently provided onsite. At the time of the developmentapplication a maximum number of 6 spaces were available for those attending the pharmacy.

It was calculated by the town planners that if AS 60.2 of the Place Code were applied, 13spaces would be required. If AS 16.1 of the Constraint Code were applied, the requirementwould be 25.

The Planning Scheme states that where there is a conflict between the two above Codes thePlace Code is to take precedence.

Notwithstanding the deficiency of onsite carparking, the first respondent contended that it candemonstrate compliance with the relevant acceptable solution by relying on spaces in theadjacent Australia Fair development as being provided in respect of all development on thesubject site, including the pharmacy.

The Court held that there is a difference between the expressions carparking is provided and

the concept of making provision, in the formulation of conditions of some other development,for carparking. In this case, the proprietors of Australia Fair have not actually provided spacesto those attending the pharmacy and, indeed exclude all save for employees of the ANZ bank.That this might involve some non-compliance by the proprietor of Australia Fair with conditionsattaching to its development, does not change the fact that the subject pharmacy is being


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operated without the requisite number of carparks being provided in relation to the pharmacy.The requirements of the relevant acceptable solution, in its application to the pharmacy, arenot met.


1. The relevant acceptable solution for self assessable development for a shop is AS 16.1of the Constraint Code.

2. The number of carparks required by AS 16.1 is not provided, even if the historicalsurplus of carparks at Australia Fair is taken into account.

3. Even if the relevant acceptable solution was AS 60.2 of the Place Code, that acceptablesolution is not complied with because:

(a) compliance depends upon taking into account the historical surplus of spacesat Australia Fair as being provided in connection with the pharmacy use, when,in fact, the spaces are only actually provided by the proprietor of Australia Fair tothe ANZ Bank tenancy for use by its staff; and

(b) in any event, the acceptable solution ought to be construed, consistently with theperformance criterion to which it relates, as relating to onsite carparking.

4. The pharmacy does not comply with the applicable code for self assessabledevelopment and so is assessable development, requiring a development permit.

04/08FAMILY ASSETS PTY LTD V GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 3(Rackemann DCJ - 5 February 2008)

Local Government (Planning and Environment) Act 1990, ss 4.4(3), (5) and (5A) - Applicationfor a development permit to facilitate developing a shopping centre proposal requiredscheme amendment appellant unable to procure scheme amendment where noimpending need for shopping centre whether development should be approved on groundsof future public and community need.

Facts:The respondent Council refused Family Assets application for a development permit tofacilitate the development of a supermarket-based shopping centre. The subject site is anarea of 20 hectares, and consists of partly cleared bushland, surrounded by existing and

proposed development. The development proposed by Family Assets would occupy an areaof 3.3 hectares and would involve the clearing of some vegetation, placing fill over thedevelopment site and constructing a new engineered channel for stormwater.

The application fell under the transitional planning scheme. Therefore, the Local Government(Planning and Environment) Act 1990 applied. The application was one which would haverequired a scheme amendment.

The principle issues in the appeal were need, town planning and environmental impact.

Much of the evidence presented addressed the future need for the shopping centre. On thegrounds of future public or community need, Family Assets argued that the site should be

approved with a condition that the operation of the centre be postponed until the catchmentpopulation reached 25 000 or until a certain future date.


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1. Need for a further full line supermarket-based development in the relevant catchmentarea is unlikely to mature until at least 2013.

2. Although the local area plan may have underestimated the need for additional centres,in the absence of evidence of impending need, it is appropriate to leave it to theCouncil to designate where the need should be met. The Court should not usurpCouncils role in that regard.

3. The grant of inappropriately premature approvals can have implications and createuncertainties. There are circumstances where it is appropriate to give a prematureapproval to meet the future needs of the community, but those circumstances are notpresent in this case.

4. The proposal conflicted with the planning scheme and has adverse effects on theenvironmental value of the site. Despite those factors, the proposal may have beensuitable for approval, had need been established.

05/08ANDREWS & HANSEN PTY LTD V GOLD COAST CITY COUNCIL [2008] QPEC 4(Wilson SC DCJ - 6 February 2008)

Appeal conflict with planning scheme reconfiguration of a lot whether conflict withsuperseded planning scheme weight to be given to new planning scheme.

Facts: This was an appeal against Councils refusal of an application to reconfigure land into

25 park residential allotments.

The application was lodged with the Council after the new planning scheme had been adoptedand 3 days before the new planning scheme came into effect.

The primary question before the Court was whether the proposed development conflicts withthe former planning scheme (a transitional planning scheme under s6.1.3 of the IntegratedPlanning Act 1997) and the more recent planning scheme applying to the area. Considerationwas also given as to whether the proposal involves elements which are beneficial in a townplanning sense and might overcome any conflict.

The alleged conflict with the planning scheme focussed upon visual amenity and bushfire

management issues. Council also alleged that the proposal was deficient in the way itaddressed the risk of bushfires, and some engineering aspects concerning fire trails anddrainage.


1. The development application is to be assessed against the superseded planningscheme but weight must be given to the new planning scheme, as at the time thedevelopment application was lodged with the Council the new scheme had beenadopted and was about to take effect, and the likely effect of the new scheme on theproposed reconfiguration would have been vivid in the appellants mind.

2. Under ss5.1(6) and 6(A) of the Local Government Planning and Environment Act 1990,the local government is required to refuse an application if it is in conflict with anyrelevant Strategic Plan or Development Control Plan, unless there are sufficientgrounds to justify approval notwithstanding the conflict.


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3. The proposed reconfiguration complies with the intent and objectives for the ParkResidential zone and associated areas and does not have any serious conflicts withthe Strategic Plan under the superseded planning scheme. The existence of the ParkResidential zone is a strong indication that the scheme accepts that a development ofthe kind proposed is, on its face, suitable. The upper slopes of the land had beenlargely cleared which is something that logically and practically underpins this zoning.

4. It cannot be said that there is any observable conflict with the Shire Image Objectivesof the superseded planning scheme which touch upon retaining the skyline and theupper slopes of the foothills and hinterlands in a predominantly natural state, andretaining and enhancing the character of a semi-enclosed rural valley. This is no longeran apt description of the area as substantial development has occurred, and theproposed development is all in cleared areas, protects vegetation and wildlifecorridors, adds a significant amount of new vegetation to the site and overall provides

a notable improvement in that vegetation.

5. It is an appropriate case to exercise the discretion in the superseded planning schemeto permit a reduction in the minimum lot size and frontages - as there are large,visually obvious separation distances to the existing residential subdivision andbetween the allotments on the 2 ridges, the actual yield is significantly better than theminimum allowed by Council, conditions could be imposed regarding tree planting, andthere would only be a single line of ridgeline houses visible from most externalviewpoints.

6. The proposed reconfiguration does not significantly conflict with the new planningscheme, as: the land had already been extensively cleared; the proposal enhances

and protects watercourses, riparian zones, remnant vegetation, fauna habitat, andvisually prominent locations; and is consistent with the character of the area, as it haschanged over time. The proposed development is a sensible and logical response tothe typography of the site and its constraints, and is an appropriate response to therelevant Performance Criteria. The proposed reconfiguration imposes appropriate firemitigation measures and access arrangements.

7. Even if any conflict with the new planning scheme exists, it cannot be described asgreater than relatively minor, or low level, and could be ameliorated by town planninggrounds which are both relevant to the area of conflict and sufficient to justify approvaldespite the conflict. The proposed development provides a range of housing stylesdemonstrates a high standard of design for future residents the new infrastructure will

be enhanced by native vegetation choices which will ultimately lead to aestheticimprovements consistent with the local character, provides support and enhancementfor existing and planned social infrastructure, and will provide additional fire protectionmechanisms with extra roads, fire breaks, fire trails and reticulated water. Theproposed development is a sensible use of already cleared land.

8. Matter adjourned to enable the parties to return with a final order incorporatingappropriate conditions of approval.

06/08GAUCI DEVELOPMENTS (QLD) PTY LTD V BUNDABERG CITY COUNCIL [2008] QPEC 8(Skoien SJDC - 7 February 2008)

Meaning of Medium Density Residential Accommodation no definition of medium densityin Planning Scheme.


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Facts: The Applicant seeks declarations that the proposed use of land which is the subject ofthree applications by the Applicant for a development permit for making a material change ofuse of land is Residential Multi Unit or Other as defined by the Councils 2004 planningscheme. The issue being that the former use is code assessable while the latter is impactassessable.

The Council issued an acknowledgement notice for each application which stated that theapproval being sought was a development permit for Material Change of Use Multi-unitDevelopment, the applicable code was the Medium Density Residential Code and that codeassessment was required.

Council then issued Amended Acknowledgement Notices which stated that the approvalbeing sought was a development permit for a Material Change of Use, Other and thatimpact assessment was required.

The catch all definition of Residential Multi Unit means any premises catering for mediumdensity residential accommodation on a single lot. If the use does not fall within thatmeaning, it cannot be Residential Multi Unit.

The definition under the Planning Scheme for Residential Multi-Unit means any premisescatering for medium density or short term residential accommodation on a single lot. Itincluded accommodation units and it was not disputed that the proposed uses wereaccommodation units.

The Planning Scheme contains the City Planning Strategy which includes a ResidentialStrategy, which states that medium density residential development (about 15-25 dwellingsper hectare) It was submitted that the provision supplies the definition of medium density

residential development which was rejected by the Court.

It was held that the Residential Strategy is not a definition but a statement of strategies. It washeld that such a broad statement of policy expressed rather vaguely and tentatively cannot begiven weight of a statutory provision defining an important concept.

In the context of a planning scheme one must look at what the planning scheme provides, notwhat it might provide.

The issue in the application was whether the definition of the use applied for was ResidentialMulti Unit or Other.


1. The use was Residential Multi Unit Development as defined by the Planning Scheme.

2. A statement of strategy cannot be given weight of a statutory provision defining animportant concept.

07/08CPT MANAGER LIMITED V GOLD COAST CITY COUNCIL [2008] QPEC 006(Wilson SC DCJ - 7 February 2008)

Refusal Appeal Visual Amenity whether proposed supermarket sign offends visual amenity

provisions of Planning Scheme including in relation to design, location and height - Gold CoastPlanning Scheme 2003 including Nerang Local Area Plan; Specific Development AdvertisingDevices Code; Local Law No. 7 (Control of Advertising); and Local Law Policy No. 7 (Controlof Advertising).


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Facts: This was an appeal against the Respondents refusal of the Appellants application fora development permit for Operational Works to construct an Advertising Device (sign) for anAldi Supermarket on the outside and above an awning of a Centro shopping centre at Nerang.

The issue in dispute was limited to the visual amenity of the sign, in particular, whether thelocation the Appellant sought for the sign would offend the design elements of the buildingbehind it.

The sign was proposed to be constructed between two existing poles already projecting abovethe roofline (over 7m above ground level) and 6m2 in size.


1. The proposed sign was not in any conflict with the relevant parts of the planning

scheme and for these reasons there was no real aesthetic or design concerns arisingaround the sign and, hence, no adverse impact upon visual amenity.

2. Relevant factors included:

(a) the design of the sign was not inherently intrusive and was consistent with thedevelopment and existing signs in locality;

(b) though the sign would be high there were already other signs on the rooftops;and

(c) the sign would not form part of the streetscape or face the nearby service road,

motorway or larger parts of the carpark.

08/08BOOTH V YARDLEY & ANOR [2008] QPEC 5(Wilson SC DCJ - 8 February 2008)

Application contempt of court non-compliance with order requiring dismantling of electricgrids used to protect crops from fauna penalty.

Facts: The applicant sought an order that the respondents be punished for their allegedcontempt of an order made by the Court on 30 November 2006 that required the respondentsto dismantle or cause to be dismantled any electric grid system constructed for the purpose of

electrocuting flying-foxes on their property.

The respondents disconnected the power supply to the grid structures on their property, butdid not take down or remove the grid structures.

The respondents submitted that they had sufficiently and satisfactorily complied with the orderas they had removed the electrical connection to, and the electrical wiring from, the gridstructure.

The Court considered whether contempt occurs if the respondents honestly believed (or werewrongly advised, but acted in reliance upon the advice) that to disconnect the electricity butnot take down the electric grid structure would not constitute a breach of the order.



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1. The meaning of an order is to be ascertained by applying ordinary principles ofconstruction, in the matrix of facts in which the order came to be made. It must beclear if it is to be enforced by contempt proceedings. The matrix will include theobjective framework of facts from which the order arose and the meaning given to theparticular words by the parties. The order will be read so far as is reasonably possibleto give it the effect which was apparently intended to achieve the Courts purpose.

2. On its face, the order required the respondents to do more than simply disconnect thepower, or remove the wiring - they were ordered to pull down and take apart the entirestructure.

3. It is no defence to the charge that a party deliberately doing the act honestly believes,or was wrongly advised, that it would not be in breach of the order.

4. The state of mind and belief of the respondents may be taken into account in terms of

penalty or sentence.

5. The respondents appear to have taken and accepted advice from their (non-legal)representative and it is probable, at least possible, that they honestly believed theywere complying with the order in simply disconnecting the electricity.

6. The respondents acted to achieve the end of discontinuing the use of the electricalsystem to kill or discourage flying foxes. There is no suggestion that they havecontinued to use the grids in any way. Therefore, the non-compliance of therespondents (while constituting a technical contempt) was of a relatively low or minororder in terms of its seriousness, and may have been the product of amisunderstanding.

7. The proper remedy in the circumstances is to confirm, to the respondents, the meaningand effect of the order while minimising the likelihood of hardship by allowing theopportunity to affect the dismantling in the least expensive way, over sufficient time.

8. The grid was to be dismantled by 31 March 2008 by pulling down and taking apart thehorizontal wires and metal poles constituting the electric grids. It is not necessary toimprove the prospect of obedience by flagging, in the order, a penalty accruing onsomething like a daily basis if there is non-compliance after the stipulated date.

09/08PARMAC INVESTMENTS PTY LTD V BRISBANE CITY COUNCIL & ORS [2008] QPEC 007

(Wilson SC DCJ - 11 February 2008)

Planning planning and environment construction of planning schemes construction ofBrisbane City Plan 2000 local plans traffic overwhelming community need.

Facts: These were three appeals concerning a proposed new supermarket and retailcomplex at Eight Mile Plains. The parties involved were Parmac (the proponent of thedevelopment) and other developers (opponents of the development) and Brisbane CityCouncil who supported and approved the proposal.

The site in question was currently vacant and generally featureless apart from some maturetrees and one small residential dwelling. The site was located in an area which has a

predominantly residential character but where the existing residential amenity was affected bythe confluence of two busy roads and the presence of the nearby school and an existingshopping centre.


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Parmacs application sought permission for a material change of use and reconfiguration toallow the construction of a shopping centre with a total area of just under 6,000m2, containinga supermarket, some specialty shops and a fast food restaurant. The proposal involved usingabout 2.46 hectares of the total site of 3.64 hectares. The stated intention was to develop thebalance area for residential use in the future.

The submitters maintained that the proposal should not have been allowed, relying principallyupon alleged conflict between the proposal and City Plan and the fact that there was no needfor the proposal. In particular, they argued that the proposal offended the retail hierarchy withthe Strategic Plan and could only be permitted if overwhelming community need was shown.They also relied on the fact that the site was designated in City Plan as an emergingcommunity area meant that it was predominantly intended for residential uses and therelevant desired environmental outcomes did not countenance or contemplate retaildevelopment.

The submitters also raised issues relating to the risk of harm to the character and amenity ofthe area, traffic impacts and the proximity of the proposal to the existing centre, RuncornPlaza.

The Kuraby Local Plan which applied to the site contained provisions which encouraged theestablishment of future convenience centres outside of the existing centres which otherwiseappeared on the City Plan maps. The Kuraby Local Plan designated a particular area (not thelocation of the proposal) as a desirable location for a future convenience centre.


1. The evidence was persuasive that the meeting of two differing uses in the immediate

area (shopping and retail with residential) would not impinge upon amenity, which canbe maintained to an appropriate standard. Further, whatever amenity concerns didexist were offset by the need for a grocery outlet of the kind proposed.

2. The evidence demonstrated that traffic issues could be satisfactorily managed andthere were no traffic engineering reasons which warranted refusal.

3. While the issue of proximity was a matter to be taken into account, the evidence of theretail and need experts and the town planners largely supported the conclusion that theproposed centre would compliment the existing centre and provide choice andcompetition to the residents.

4. It was inescapable that the Kuraby Local Plan contained a tacit but compellingacknowledgement that a need for a convenience centre existed within its area but wentno further than that. This was persuasive that neither need nor overwhelmingcommunity need must be established in order to justify the particular location of aconvenience centre within the Kuraby local area.

5. The meaning and effect of the phrase overwhelming community need will varyenormously from case to case. When the need to be satisfied involves the dailyessentials of ordinary life, the bar should not be set too high and when the planningscheme indicates a deliberate planning decision to provide an opportunity forappropriate convenience retail facilities to satisfy those needs, and where there are nounacceptable impacts on amenity, the efforts required to demonstrate need at that

level are not onerous.

6. City Plan provides substantial support for development of the kind proposed. Theprincipal relevant element of the planning scheme, the Kuraby Local Plan, accepts a


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4. The presence of such an important factor as need, in circumstances where the zonesappropriate for a community use could not satisfy the growing demand, compelledapproval of the proposal

11/08LACHLAN REIT LIMITED PTY LTD v BEAUDESERT SHIRE COUNCIL & ORS [2008]QPEC 10(Rackemann DCJ - 15 February 2008)

Non-compliance premature public notification failure to repeat IDAS stages followingchanges failure to advise referral agency of change whether non-compliance with arequirement of IPA, whether non-compliance substantially restricted the opportunity toexercise rights ss.3.4.1, 3.2.8, 3.2.9, 3.2.10, 4.1.5A, 4.1.52, Integrated Planning Act 1997].

Facts: This was a determination of preliminary issues in an appeal brought by an adverse

submitter (operator of competing shopping centre) against the Respondents decision toapprove a development application, by the Co-Respondent, for a shopping centre(supermarket, specialty shops, convenience restaurant - fast food outlet with drive thru - andcar parking).

There preliminary issues requiring determination were about the alleged non-compliance withthe provisions of the IPA in the processing of the Application and related to:

1. the premature commencement of public notification, prior to Council being providedwith a copy of the Co-Respondents response to the DMRs information request; and

2. the failure to repeat IDAS steps consequent upon the following:

(a) a change to the layout of the proposal, involving most relevantly, re-orientationof the convenience restaurant; and

(b) a request, communicated on the day the Application was decided, to extendtrading hours and change service delivery times.

The matters for determination concerned the extent of any non-compliance and whether theCourts discretion under section 4.1.5A of the IPA was enlivened and ought to be exercised soas to excuse any non-compliance.


1. The premature commencement of public notification and consequent absence of theCo-Respondents response to DMRs information request during the public notificationperiod did not substantially restrict the opportunity for a person to exercise the rightsconferred under the IPA and the appeal was allowed to proceed notwithstanding thisnon-compliance.

2. The change to the layout of the proposal was a change made in accordance withsection 3.2.9(1) of the IPA and the IDAS process stopped and was to start again at thestart of the Acknowledgment Period.

3. The failure to notify DMR of the changed application did not substantially restrict the

opportunity for a person to exercise the rights conferred under the IPA as DMR wouldnot have altered its amended referral agency response.


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4. The Respondents notification to the Appellant that public notification was not requiredto be repeated (as the changes were minor) was issued in error. Accordingly, thechanged application should have been publicly notified. However, the Co-Respondenthad since abandoned the changed application and given notice that it wished toproceed with the original layout as publicly notified it was open and appropriate andhence this non-compliance had not substantially restricted the opportunity for aperson to exercise the rights conferred under the IPA.

5. In relation to the change to extend the trading hours and service delivery times, theevidence fell short of establishing that the request was given to the Respondent priorto the Application being decided and hence no change was made to the Application inthis respect.

6. In relation to all issues the Court was satisfied that it was open and appropriate toexercise the discretion in section 4.1.5A of the IPA to permit the appeal to proceed

notwithstanding non-compliance.

12/08GOLD COAST CITY COUNCIL V GOLDSITE PTY LTD & ORS [2008] QPEC 12(Wall QC DCJ - 19 February 2008)

Planning Planning law unlawful use of land contrary to condition of development approval order requiring use to cease whether enforcement of order should be suspended pendingapplication to vary condition relevant considerations.

Facts: This was a proceeding filed by Gold Coast City Council seeking orders restraining thecommission of a development offence on land owned and operated by the Respondents under

a development approval.

The approved plan of development, which was referred to in condition one of the developmentapproval, designated part of the land as landscape recreation area. The Respondents wereusing that part of the land as a hard stand area for the storage and parking of boats, trailers,caravans and motor vehicles and for the storage of equipment.

Council submitted that the use of that part of the land as a storage and carparking area was abreach of a condition of approval and therefore constituted a development offence.

Although the Respondents conceded that Council was entitled to an enforcement orderrestraining the use of that part of the land for storage and carparking purposes, they submitted

that the operation of the enforcement order should be suspended until they had had time tomake a request to change the conditions of the development approval to allow the use of thatpart of the land for carparking purposes.


1. The fact that an application for an alteration of conditions would be made by theRespondents in the future did not alter the unlawfulness of the use, the fact of theconditions limiting the use of the land, or the fact that formal Council approval wasrequired before use could be made of the land for purposes other than recreationalopen space.

2. There had been a flagrant breach of the conditions of the development approval by theRespondents as they had not only allowed the land to be unlawfully used once theywere formally advised of the unlawful nature of the use, but they had expanded theunlawful nature of the use.


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3. There was no evidence that any third parties would suffer any injustice orinconvenience if they were forced to obtain alternative accommodation for theirvehicles currently occupying the site.

4. The attempts by the Respondents to manage the use were not sufficient to cause theCourt to exercise its discretion in the balancing exercise in favour of the suspensionsought by the Respondents.

13/08MAC SERVICES GROUP LIMITED V BELYANDO SHIRE COUNCIL & ORS [2008] QPEC11(Wilson DCJ - 21 February 2008)

Declarations use associated with works camp - whether use had been abandoned or had

increased in scale and intensity - s 1.3.5 Integrated Planning Act (IPA) - discussion of whenrelief under s 4.1.21 and 4.1.22 of IPA is available - operation of s 176(1) Government OwnedCorporations Act 1995 - application of 6.1.40 of IPA.

Facts: The Applicant (Mac Services) operated an accommodation village for mine andcontract workers. The Second Respondent, Queensland Rail (QR) had plans to upgrade andexpand an accommodation village nearby on land owned by QR (the subject land).

Mac Services was concerned that the development by QR was being undertaken without thenecessary local authority approvals because it was a material change of use (MCU) ofpremises under s 1.3.5 Integrated Planning Act(IPA). It submitted that QR would need furtherapprovals because, firstly, the prior use had lapsed, and secondly, the proposed new use was

disproportionate to the level of past use.

Mac Services sought the following relief:

1. A declaration that, upon the proper construction of the Belyando Shire planningscheme, the proposed use is properly defined as a works camp within that scheme.

2. A declaration that using the site for that purpose would constitute a material change ofuse under IPA.

3. A declaration that the use of the site for the purpose of a works camp constitutesassessable development under the legislation and the planning scheme (and, hence,

an MCU) for which a development permit from the local authority is necessary.

4. An Order restraining QR from carrying out development work associated with theworks camp until such time as a development permit for an MCU for that purposecomes into effect.

The Respondents did not contest the first declaration, as to the definition of the use as aworks camp.

The parties agreed that, from the 1980s until 1993, QRs predecessor used the land foraccommodation for staff at various times, perhaps continuously. On 30 June 1995, the landceased to be Crown land and became subject to the Respondent Councils planning scheme.

Units remained on the subject land from 1995 until 2001, when they were removed to makeway for new buildings. Facilities for a 50-man camp were constructed on the land in 2005 andused in 2006. Mac Services operated those facilities from January 2006 to February 2007. In2007 QR engaged a third party to provide further accommodation.


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QR and the Respondent Council argued the declarations should not be granted because theysought relief which was hypothetical and lacked a proper contradictor. His Honour found infavour of Mac Services on this point, holding that there would be sufficient utility to justifymaking the orders.

However, taking into account that the use associated with works camps is often intermittentand inconsistent, and based on QRs evidence, his Honour found that QR never lost orabandoned an intention to re-use this site from time to time. Evidence which his Honour reliedon included the fact that the facilities were retained on the land until 2001 and the servicesremained after that time, and the fact that QR paid rates.

As to the increase in scale and intensity, although there was evidence that there would beaccommodation for at least 72 workers, his Honour was not satisfied that there had been anincrease in the scale and intensity of the use, and if there was, it had not yet occurred.

Judge Wilson commented that even if he had found in favour of Mac Services on the facts, hestill would have declined to exercise the discretion under s 4.1.21 or under s 4.1.22.


1. There would be sufficient utility to justify the making of declarations in this case, if theCourt considered that such relief should be granted.

2. The question as to whether or not abandonment has occurred is one fact to bedetermined having regard to all the circumstances of the case, considered from thestance of a reasonable person with knowledge of all of those circumstances, which

includes the subjective intention of the relevant person. Where a use is recurring, butonly happens when the actual use is required, a period of lapse will not necessarilymean that the use has been automatically abandoned.

3. There was no increase in the scale and intensity of the use in this case.

4. The exemption under 6.1.40 of IPA does not apply in this case, because under s176(1) of the Government Owned Corporations Act 1995, QR is excluded from thebenefit of the exemption.

14/08MULTI SPAN AUSTRALIA PTY LTD V DEPARTMENT OF MAIN ROADS & ANOR [2008]

QPEC 14(Rackemann DCJ - 27 February 2008)

Planning and environment planning deemed refusal appeal development application formaterial change of use for office complex where proposed access point was close to anintersection compliance with code traffic issues safety concerns.

Facts: This was an applicant appeal against the Councils deemed refusal of a developmentapplication for a development permit for a material change of use of premises, in order tofacilitate the development of an office complex on a site at Acacia Ridge.

At the time of the hearing, only one traffic issue was in dispute. That issue related to the

proposed access point for the development. The proposed access point was approximately16 metres from an intersection.


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The Respondent argued that the separation of the access point from the intersection wasinsufficient, which would have an adverse impact on safety and was contrary to performancecriterion P5 of the Transport Access Parking and Servicing Code.

Council was particularly concerned about safety in circumstances which would involvevehicles turning right into the site. Councils traffic expert identified several hypotheticalscenarios which raised safety concerns and favoured the imposition of a condition of approvalwhich would require roadworks preventing right turns into the development. The Applicantstraffic expert gave evidence that the potential for the risks identified by Councils traffic expertto be realised, was relatively low.


1. The hypothetical scenarios put forward by Councils traffic expert, while possible, werelikely to be rarely encountered and were not persuasive that the development would

have an unreasonable or unacceptable adverse impact on safety.

2. The onus was on the Applicant to satisfy the Court that the appeal should be allowedand the application ought to be approved. The Court must be satisfied that theproposal put forward by the Applicant was appropriate, not just that it is moreappropriate than what the Council was prepared to accept.

3. Whilst the arrangements proposed by the Applicant did not meet the acceptablesolutions to performance criterion P5 of the Transport Access Parking Services Code,the proposal did not offend the performance criterion itself.

4. It was not necessary to impose the condition suggested by Council.

15/08COUNCIL OF THE SHIRE OF NOOSA v COTTON ON CLOTHING PTY LTD [2008] QPEC13(Dodds DCJ - 29 February 2008)

Development Application for material change of use of premises to shop (display area) Conditional development approval granted by the Court Condition restricted shop displayarea Shop proprietor contravened condition and breached restraining order Contempt s4.1.5 Integrated Planning Act 1997.

Facts: This was an application by the Council of the Shire of Noosa (the Applicant) seeking

orders that Cotton On Clothing Pty Ltd (the Respondent) be punished for contempt pursuantto section 4.1.5 of the Integrated Planning Act 1997.

On 13 July 2007, the Applicant successfully proved that the Respondent had violated theconditions of its development approval by using an area of the property exceeding sevenmetres squared for display purposes and the Court made orders restraining the Respondentfrom continuing to do so. It is those orders that the Applicant claimed the Respondent was incontempt of.

The application was heard on 1 February 2008. At the hearing, the Respondent conceded thatit had breached the order of 13 July 2007. The only issue was the penalty to be imposed.

The Respondent argued that a penalty should not be imposed because it had breached theorder unknowingly. It had altered the layout of the store in a way which it believed wasconsistent with the order of 13 July 2007. The Respondent also submitted a penalty should


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22/129

Date: March 2008

Author:

Michael Walton


16/08GS UNIT TRUST V MAROOCHY SHIRE COUNCIL & ORS [2008] QPEC 18(Robertson DCJ - 8 February 2008)

Appeal against Councils refusal to grant development permit retrospectively impactassessable development, extent of impact on amenity of adjoining resident of houseconstructed contrary to approved plans - exceedance of maximum building height in precinctspecific part of Planning Scheme - s 3.5.14(2) of the Integrated Planning Act 1997 - whetherdevelopment conflicts with Planning Scheme, whether sufficient planning grounds exist tojustify approval.

Facts: This Appeal concerns a refusal of an application for development of a detacheddwelling on the rear allotment of a block after it was reconfigured into two allotments in 2004.These plans for the detached dwelling were approved by a private certifier. After the dwellingwas substantially completed Council issued an enforcement notice stating that the parts of thebuilding exceeded the maximum building height of 8.5 metres by .88 metres.

The Appellant subsequently lodged an impact assessable development application to theCouncil seeking a development permit for a detached house exceeding 8.5 metres. Councilreceived a number of submissions from surrounding residents who disapproved thedevelopment. Council refused the development application based on town planning andamenity grounds.

The issues for the Court were whether the development conflicts with the Planning Scheme(s3.5.14 (2) of the Integrated Planning Act1997) and if so whether sufficient planning groundsexist to justify the approval despite the conflict.


1. The Loss of amenity to the adjoining residence was significant; therefore the proposalconflicts with P1 in the relevant code.

2. Under s3.5.14 (2), none of the grounds identified were sufficient enough to justifyapproval of the attached dwelling.


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17/08WATERFRONT (QLD) PTY LTD V HERVEY BAY CITY COUNCIL [2008] QPEC 17(Brabazon QC DCJ - 20 March 2008)

Applications pursuant to s.4.1.47(2) of the IPA whether development may start before aconditions Appeal is decided whether removal of a condition on appeal may allow Council tosubmit that the approval should be overturned.

Facts: This was an application under section 4.1.47 (2) of the Integrated Planning Act 1997for an order permitting development to start before an appeal was decided.

The subject of the development application related to land located at the Esplanade, HerveyBay and sought approval for development for several purposes multiple residential (36units), a motel (105 units), shops and a restaurant.

The development application was approved by council subject to conditions. The applicantsubsequently appealed against four of those conditions.

It was common ground that two of the conditions relating to waste collection and public artcould conveniently be dealt with after the work started, however a dispute arose concerningcondition 38 and condition 52. In relation to those conditions, Council argued that work shouldnot commence until after the appeal was decided.

Condition 38 dealt with the sand to be excavated from the site and the works to be undertakenby the applicant in that regard. Despite a dispute over who would be responsible for theplacement of the sand on beaches, the applicant agreed to the other works required by thecondition and proposed to give an undertaking to ensure that the appropriate steps took place.

Condition 52 required the applicant to pay a contribution to council for the provision of 34 carparking spaces. Council required that 202 spaces be provided while the proposeddevelopment provided only 168 spaces. The contribution was to cover the shortfall whichwould be provided off-site. The applicant argued that the number of car parks and themonetary contribution could be determined after work commenced.

A recent development was also pertinent. Following the filing of the appeal but prior to thefiling of the application, Council's solicitors had written a letter advising the applicant that if itcontinued to challenge condition 52, Council would contend at the hearing of the appeal thatthe development application should be refused. That letter led to the filing of the application.Council contended that work should not commence as the whole development application

may be refused. The applicant argued that the appeal was limited in scope to an appealabout conditions and not the approval itself.

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

1. It will always be open for a Council, in supporting the imposition of a condition, to callevidence to the effect that the proposal would be undesirable in the event that thecondition were not imposed.

2. Conditions may be the focus of an appeal, but the actual scope of the appeal is wider -it is any matter stated in a development approval.

3. In deciding an appeal, the Court may make the orders and directions it considersappropriate. If the Court changes the decision appealed against, then the Court'sdecision is taken to be the decision of the Council making the appeal decision.


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4. The material did not show any particular prejudice that would be caused by waiting forthe outcome of the appeal. The fact that matters in the Planning and EnvironmentCourt came on quickly must be taken into account in deciding whether work shouldcommence.

5. It was available to the Council to contend that the deletion or alteration of a certaincondition should cause the whole approval to be overturned.

6. If condition 38 was the only difficulty, the appropriate course would be to accept theapplicant's undertaking and allow work to commence.

18/08STOCKLAND DEVELOPMENTS PTY LTD V GOLD COAST CITY COUNCIL & ANOR[2008] QPEC 16(Robin QC DCJ - 18 March 2008)

Appellant developer obtained a preliminary approval for a material change of use of its 277hectare site from grazing to residential and associated uses development in stagesenvisaged condition for payment of contributions towards water supply and sewerageheadworks according to rates in force at the time of payment Council imposed on laterapplication for development permit for reconfiguration conditions for such contributions athigher rates under new Local Planning Policies about infrastructure contributions and forcontributions under new policies in relation to recreation facilities and transport whether suchconditions unlawful whether they further regulate the development, affect the [preliminary]approval or are inconsistent with the earlier condition.

Facts: This was a conditions appeal by Stockland under s 4.1.27(1)(b) of the Integrated

Planning Act 1997(IPA) in which the court was required to determine as a preliminary issuewhether certain conditions notified in the negotiated decision notice dated 6 August 2007 wereunlawful by reason of either s1.4.4 or s3.5.32(1)(a) of IPA. If Stockland was successful, thedetermination may have resolved the appeal; otherwise the appeal would proceed so that thechallenged conditions could be tested under s3.5.30 of IPA.

The negotiated decision notice approved a development application (superseded planningscheme) for a development permit for reconfiguring a lot and a development permit for amaterial change of use in relation to the Kingsmore West development.

The disputed conditions were conditions 63, 64, 65 and 66 of the negotiated decision noticewhich related to infrastructure contributions. The conditions required the infrastructure

contributions to be made in accordance with planning scheme policies and local planningpolicies that were adopted after the development application the subject of the appeal waslodged with Council but before it was decided.

Stockland claimed protection under a 2003 preliminary approval (issued by way of a consentorder of the Court) for a material change of use for residential, open space and local activitycentre which applied to the site and had a currency period of 15 years. Condition 3 of thepreliminary approval required infrastructure contributions to be assessed on the basis ofapproved building or subdivision plans and calculated in accordance with the rates in force atthe time of payment. Stockland argued that Council was precluded from calling forinfrastructure contributions beyond those specifically listed in the preliminary approval.

In relation to conditions 63 and 65 (which required contributions in accordance with planningscheme policies), Stockland relied on section 1.4.4 of IPA (new planning instruments cannotaffect existing development approvals) to support its argument. Stockland argued that thepreliminary approval was an existing development approval for the purposes of section 1.4.4


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of IPA. The planning scheme policies, being planning instruments, therefore could not stopthe development, further regulate the development or in some other way affect the approval(being the preliminary approval).

Neither party claimed that anything had happened to stop the development. Council arguedthat its planning scheme policies did not regulate or seek to regulate development, nor didthey affect the preliminary approval. Council also argued that in any event the preliminaryapproval related to different development from the negotiated decision notice the subject ofthe appeal.

In relation to conditions 64 and 66 (which required contributions in accordance with localplanning policies) Stockland relied on section 3.5.32(1)(a) of IPA which provided that acondition must not be inconsistent with a condition of an earlier development approval that isstill in effect for the development.

Stockland argued that condition 3 from the preliminary approval was still in effect and theconditions from the negotiated decision notice were inconsistent with condition 3 because theywere based on different planning instruments and applied different rates.

Council argued that development of the subject of the preliminary approval must be the sameas the subject of the negotiated decision notice for a condition imposed upon the negotiateddecision notice to be precluded. Council also argued that in any event, there was noinconsistency between condition 3 and the later conditions because all conditions could becomplied with.


1. In relation to conditions 63 and 65, it was not development generally, but only thedevelopment the subject of the preliminary approval that may not be further regulated.Councils planning scheme policies did not offend that prohibition. The preliminaryapproval related to different development than that approved by the negotiateddecision notice.

2. The contention that the planning scheme policies themselves set out to regulatedevelopment was rejected. The planning scheme policies per se did not imposeconditions. It was for the Council to determine in relation to particular applicationswhether to impose a condition by reference to a policy that triggers section 6.1.31 ofIPA in reliance on the power conferred by that section.

3. In the context of section 1.4.4 of IPA, affect means change.

4. There was a distinction to be drawn between the preliminary approval for a materialchange of use and the subsequent development permit for reconfiguration of a lot.What regulated or affected the latter did not necessarily regulate or affect the former.There was no reason why, when different development was applied for, infrastructurecontributions under different heads, identifiable as unexceptional conditions in the localgovernment area at the time, may not be included in a development permit issuingpursuant to a new development application.

5. In relation to conditions 64 and 66, there was little justification for asserting that theearlier infrastructure charges rates should be applied. Over a 15 year currency period,movement in the costs of providing infrastructure may not correspond with general CPIincreases at all; furthermore, there may be discovered deficiencies in the mode ofcalculating costs which ought to be corrected. The requirement in condition 3 for


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identification of rates in force at the time of payment required recourse to the localplanning policies referred to in conditions 64 and 66.

6. It was tolerably clear that the appellant could comply with conditions 3, 64 and 66 atthe same time. This was because conditions 64 and 66 gave effect to that which wasleft for further determination by condition 3 of the preliminary approval. The outcomeswere in substance the same.

19/08TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTIONAGENCY v DOUGLAS SHIRE COUNCIL [2008] QCA 56(McMurdo P, Holmes JA and Dutney J - 14 March 2008)

RIGHT AND AVAILABILITY OF APPEAL where applicant/appellant sought thedetermination of preliminary points of law whether applicant/appellant should be granted

leave to appeal on a point of law under s 4.1.56 Integrated Planning Act 1997 (Qld) fromdecision of primary judge.

OTHER MATTERS where applicant/appellant granted itself approval to construct toilet blockon State coastal land above high-water mark near Daintree River where respondent appliedfor a declaration that the construction required a development permit from it to be lawful where applicant/appellant sought the determination of preliminary points of law where nofactual findings had been made prior to applicant/appellants application where primaryjudge accepted respondents interpretation of interfering with quarry materials within Sch 8Pt 1 Table 4 Item 5(b)(i) Integrated Planning Act 1997 (Qld) whether primary judge erred inmaking determination of preliminary points of law whether application for determination ofpreliminary points of law was premature in the absence of factual findings.

Facts: In November 2005, the Douglas Shire Council, the present applicant, (Council)commenced constructing a public toilet block and two associated sewerage systems on thesouthern bank of the Daintree River. The construction was adjacent to an existing pontoon,upstream of the Daintree River ferry crossing. The Council had applied to itself as assessmentmanager and, in October 2005, issued to itself the development approval it considerednecessary for the construction of the toilet block. The development approval did not relate tothe sewerage systems. Later in October 2005, the Council issued itself an approval ofplumbing work in respect of the sewerage treatment systems.

The work associated with constructing the toilet block resulted in the excavation of the naturalground for the toilet block footings, the installation of the sewerage treatment systems and the

connecting pipe work. It seems the work stopped on the construction in early 2006. It wasbriefly resumed between January and February 2007. The toilet block, however, remainsuncompleted and unoperational pending the determination of the present dispute as towhether the Councils development approval was lawful.

The land on which the toilet block had been partially constructed is in a coastal managementdistrict under Part 3 of the Coastal Protection and Management Act 1995 (Qld). It is alsoState coastal land above the high-water mark within the meaning of those terms in theCPMA. The material excavated to construct the toilet block and install the sewerage treatmentsystems and connecting pipe work constituted quarry material as defined in the CPMA.Under s 3.1.4(1) Integrated Planning Act1997 (Qld). A development permit is necessary forassessable development, relevantly, development specified in Sch 8 Pt 1 of the IPA.. Thechief executive administrating the CPMA is the Director-General of the EnvironmentalProtection Agency, the present respondent. The EPA is assessment manager for applicationsfor operational work (other than excluded work) that is carried out completely or partly within a


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coastal management district, including work interfering with quarry material on State coastalland above high-water mark.

In January 2007, the EPA applied to the Planning and Environment Court for declarationsunder s4.1.21 of the IPA that operational work, being interfering with quarry material on Statecoastal land above the high-water mark for the construction of the public toilet block, isassessable development under Sch 8 Pt 1 Table 4 Item 5(b)(i) of the IPA and requires adevelopment permit from the EPA in order to be lawful development.

At the time of this decision, that application had not yet been determined because the Councilapplied to the Court for the determination of some preliminary points of law relating to theconstruction of the IPA and the CPMA.

First, the Council urged that, under the proper interpretation of Sch 8 Pt 1 Table 4 Item5(b)(i) of the IPA, the EPA's jurisdiction was limited only to consideration of work that

involves acts or proposed acts involving the interference with quarry material and doesnot extend to other aspects of development that are declared to be assessabledevelopment under Sch 8 of the IPA which involve acts or proposed acts subsequentto the interference with quarry material.

Its second contention was that upon the proper interpretation of the IPA, the questionwhether any work the subject of the present proceeding involves interfering with quarrymaterial for the purposes of Sch 8 Pt 1 Table 4 Item 5(b)(i) must be determined withreference only to the acts or proposed acts comprising excavation of quarry materialfor the purpose of creating a stable footing for the slab of the toilet block building andfor the purpose of installing the sewerage treatment systems and associated pipework.

As a corollary to that second point, the Council contended that the proper interpretationof the IPA was that the act of construction of the toilet block subsequent to theexcavation of the quarry material referred to in the second contention is not operationalwork which is assessable development but is building work that is assessabledevelopment.

Fourth, the Council contended that the question, whether the exemption for "excludedwork" as defined in Sch 10 of the IPA applies to any work associated with theconstruction of the toilet block, must be determined with reference only to the acts orproposed acts involving direct interference with quarry material by way of excavation. Itshould not be determined by reference to any acts or proposed acts subsequent to theinterference with quarry material.

The Council has applied for leave to appeal to the Court against the primary judgesdetermination of the preliminary points of law. To succeed in this case, it must show an errorof law and then persuade this Court that leave to appeal should be granted. The Councilcontends that the judges decision was wrong in law under s4.1.56 of the Integrated PlanningAct 1997(Qld) and that leave to appeal should be given because the jurisdiction of the EPA inthe assessment of development applications within coastal management districts is an issueof general importance in Queensland. Were leave to appeal granted, its grounds of appealwould be that the judge erred in law in concluding that the EPA was an assessment managerfor operational work proposed by the Council; the expression interfering with quarry material

should be confined to direct interference; and the judge erred in interpreting both Item 5 (b)(i)in Sch 8 Pt 1 Table 4 of the IPA and the term excluded work in Sch 10 of the IPA.

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


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McMurdo P and Dutney J

1. The judge was right to reject the determinations of preliminary points of law sought bythe Council. The Council's application was premature in the absence of full factualfindings. The judge should have ordered only that the Council's application be refused.The Council has not made out its proposed grounds of appeal but it has demonstratedthat the judge erred in accepting completely the EPA's contentions 16, 18 and 19.

2. The Council has shown the primary judge made errors of law in interpreting complexlegislation with potentially significant public interest and impact. Leave to appealshould be granted so that these errors can be corrected before the hearing of theEPA's application for declarations under s 4.1.21 of the IPA.

3. Appeal to be allowed, set aside the order made by the Planning and EnvironmentCourt of 11 May 2007, and instead order that the application for the determination ofpreliminary points of law be refused. As both parties have only enjoyed partial successin this appeal, I would make no order as to costs.

Holmes JA

4. The Chief Executive has a role to play in assessment for some specific types of workidentified by Item 5; work of the kind with which he or she would be concerned underthe CPMA. Item 5(b)(i) identifies one such activity. Operational work, other thanexcluded work, which interferes with quarry material on State coastal land above high

water mark, is, to the extent of that interference only, assessable development forwhich the Chief Executive is assessment manager.

Queensland Planning and Environmental Law Reports

Full reasons for judgment of the above cases will be published in the Queensland Planning andEnvironmental Law Reports. All inquiries regarding subscriptions, back copies or boundvolumes of the QPLERs should be directed to The Publisher, Printacular Printing & Publishing,661 Mains Road, Macgregor Qld 4109.

Tel: 07 3349 2324 These cases will be ublished in forthcomin issues of the QPLERs

More information about court updatesIf you would like more information in regard to any item in this bulletin or to be added to the bulletin mailing list, please visit ourwebsite at http://www.deacons.com.au/epqld.

Planning and Environment case updates are published on a monthly basis and provide clients, associates and friends of Deaconswith regular summaries of Planning and Environment Court and relevant Supreme Court and Court of Appeal decisions.

This update service was first published in January 1993 and has been in continuous monthly production since itscommencement. For current and past updates (from January 1998) visit our website and link to Court Updates. The electronicversion of this publication is also linked to the full text reasons for judgment.

This bulletin has dealt with matters of a technical nature in summary terms only. No responsibility for loss occasioned to anyperson acting or refraining from acting in reliance upon any material in this bulletin can be accepted by any of the partners orstaff of the firm.


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Date: April 2008

Author:

Michael Walton


20/08CALVISI HOLDINGS PTY LTD V BRISBANE CITY COUNCIL & ANOR [2008] QPEC 19(Robin QC DCJ - 18 February 2008)

Integrated Planning Act 1997 s3.2.9, s3.2.12(1), s3.3.3, s.3.4.3, s4.1.5A where developmentapplication may have lapsed for applicants failure to notify a referral agency of its applicationin time, but the agency and the Council were in agreement, order made to permit the decisionstage to be commenced public notification was premature as information and referral stageswere not completed.

Facts: The applicant failed to comply with section 3.3.3(1) of the Integrated Planning Act

within the time allowed by section 3.2.12(2)(a). Section 3.3.3(1) in combination withsection 3.2.12(2)(a) required the applicant to give each referral agency a copy of theapplication and other relevant material within 3 months. The consequence of failing to complywas that the application lapsed.

The primary issue considered by the Court was whether the Court could excuse this non-compliance under section 4.1.5(a) of the Act. The Courts in power under section 4.1.5(a)depended on the Court finding that a requirement of this Act had not been complied with.


1. The orders sought under section 4.1.5A be made.

21/08GLENVALE PROPERTIES PTY LTD V TOOWOOMBA CITY COUNCIL AND ORS [2008]QPEC 20(Robin QC DCJ - 20 March 2008)

Development applications rival supermarket-based shopping centre proposals deemedrefusal of one preliminary approval (as opposed to the development permit sought) for theother common ground only one was needed issues included which served its catchmentbetter, traffic, impact on an existing shopping centre, neighbourhood amenity whether DraftStrategic Plan which favoured one proposal should be taken into account despite the work

done, the Schedule I processes set out in the Integrated Planning Act 1997 had notcommenced.

Facts: The 4 appeals concern 2 proposals for new supermarket anchored shopping centresin the west of Toowoomba, both with an eastern frontage to Greenwattle Street.


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The Glenvale appeal was against the Councils deemed refusal of its application.

The McNab appeal was against the Councils decision to give a preliminary approval when adevelopment permit was applied for.

The 2 competing sites were about 3/4 km apart.

The Glenvale site had an area of about 2.4 hectares, the corner portion of which has beendeveloped for a bowling facility known as Sunset Superbowl. Part of the proposal is areconfiguration to subdivide off that facility but leave a site in excess of 1.7 hectares. TheGlenvale site is zoned rural and allocated to the Future Urban Land Precinct.

The McNab site will have an area of 1.4 hectares. This site is also zoned Rural and allocatedto the Future Urban Land Precinct.

Decision: The Court held that, in allowing the McNab appeal, but dismissing the Glenvaleappeal:

1. There is scope for only one new shopping centre in the general area. It is amplydemonstrated that there is need for one shopping centre. Further, each proposal hasthe capacity to satisfy that need;

2. The sites may be considered equal in so far as neither is presently designatedNeighbourhood Precinct or on a site nominated as suitable in a Structure Plan;

3. Factors favourable for the McNab approval include:

(a) It being located closer to the population served;

(b) Its access to Glenvale Road which carries the through traffic between East andWest;

(c) It is more likely to suit the Councils planning intentions;

(d) It consolidates commercial activity in a node in a confined location, consistentlywith the existing planning scheme; and

(e) With its underground parking, it is more space efficient.

4. Because of the additional work done by McNab, the development permit originallyapplied for, rather than the preliminary approval, is now justified.

22/08FRASER AND ANOR V BEAUDESERT SHIRE COUNCIL AND ORS [2008] QPEC 21(Rackemann DCJ - 24 April 2008)

Development applications appeal against conditions extractive industry whether acondition limiting the life of the permit to 12 years was reasonable an objector contended fora shorter period.

Facts: This was an applicant appeal against conditions attaching to the Councils approval ofan application for an extractive industry - a sand mine at Mundoolun Connection Road,

Boyland. The approval authorised sand mining activities extracting up to 350,000 tonnes perannum over the life of the permit. The sand mine was an existing operation which had beenoperated under earlier approvals and extensions. The subject site was within a rural area buthad some proximity to an area of rural residential properties. The sole outstanding issue forresolution was the appropriate duration of the approval. Save for an objector, the parties


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agreed that 12 years would be an appropriate period. The objector contended for a shorterperiod, namely until 2017.

Decision: The Court held in finding that the 12 year period was appropriate:

1. The term of the approval provided an appropriate regime for the acceptable operationof the use and for determining ongoing compliance.

2. The 12 year period was not excessive for a use of this kind in these circumstances.


32/129

Date: May 2008

Author:

Michael Walton


23/08MUIR & ANOR V LOGAN CITY COUNCIL & ORS [2008] QPEC 24(Robin QC DCJ - 8 May 2008)

Integrated Planning Act 1997, s 4.1.5A whether with agreement of all concerned parties anorder can be made circumventing the effect of a provision in the Act under which adevelopment application has lapsed whether such relief is available in an originatingapplication made to the Court for the purpose, rather than in some wider proceeding reliefgranted where a concerned agency was inadvertently not supplied with the responsesprepared to an information request inspired by it development application ordered toproceed by recommending the notification stages.

Facts: The Applicant applied to the Court for an order under s 4.1.5A to regularise non-compliances with provisions of the Integrated Planning Actabout the failure of the applicationto provide a concurrence agency (the EPA) with a response to a referral co-ordinationinformation response. The orders sought were not opposed.

Decision: The Court orderedthat the Applicants development application proceed from thebeginning of the notification stage.

24/08FOCUS DEVELOPMENTS & CONSTRUCTION PTY LTD -V- MAROOCHY SHIRE

COUNCIL [2008] QPEC 25(Robin QC DCJ - 30 May 2008)

Planning and Environment Court rules 1999 r12 convenience of court as well as parties maybe consulted in application for hearing elsewhere and than where proceeding filed proceedings in Brisbane, development site in Maroochydore, where Council and Co-Respondent by election (submitters) preferred the hearing to take place.

Facts: The Respondent Council applied under rule 12 for the appeal, which was commencedin Brisbane, to be heard in Maroochydore. The Appellant (the applicant for the developmentapplication) opposed the application notwithstanding that the site, the subject of theapplication, was located in Maroochydore.

Rule 12 provides that the proceedings may be heard in another place, if the Court decides itcan be more conveniently or fairly heard in the other Court.


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Decision: The Court held, in refusing to order the transfer of the hearing that:

1. the Council should be treated as having the onus of establishing that there should be atransfer of the hearing;

2. the Court would be reluctant to order a hearing at Maroochydore if it involved delayingthe hearing of the appeal; and

3. the Court would have been inclined to order a hearing at Maroochydore but for the factthat the two days available were separated, being 29 July and 1 August 2008.

25/08TEXTOR v BRISBANE CITY COUNCIL & ORS [2008] QPEC 31(Searles DCJ - 30 May 2008)

Application for declarations s4.1.21 of IPA requirements for approval of rezoningapplication following successful appeal under Local Government (Planning and EnvironmentAct 1990) whether subsequent development approval invalid discretionary considerationsof granting declaration whether operation of declaration should be postponed.

Facts: The Applicants sought declarations to the effect that a development approval forreconfiguration of a lot issued by the Council in 2005 over land owned by the Co-Respondentsis invalid.

The Applicants submitted that the development application was wrongly assessed on a codeassessment basis as it was incorrectly assumed that the lands lawful designation under theCouncils planning scheme was Low Density Residential when, in truth, the correct

designation was Emerging Community Area. In the Emerging Community Area, the proposedreconfiguration would have required impact assessment.

In 1995, a rezoning application was made over the land seeking rezoning from Future UrbanZone to Residential a Zone with the intention of reconfiguring the land. The rezoningapplication was refused by Council. The refusal was appealed to the Court. In 2003 the Courtallowed the appeal and approved the rezoning application subject to conditions. However, theCouncil did not take the statutory steps required to facilitate the rezoning and the planningscheme was never changed to reflect the rezoning approval.

In 2004, the Co-Respondents made its development application for a reconfiguration of a lotidentifying the site as being designated Low Density Residential under the rezoning approval,

and that the designation was not in keeping with the designation of the land as EmergingCommunities under the planning scheme. In July 2005, the Council issued a decision noticeapproving the application on the basis that the application was code assessable.

In October 2005, the applicants lodged an application with Council for preliminary approvalunder s3.1.6 of IPA for a material change of use over land adjoining the Co-Respondentsland. The application identified the land as being located within the Emerging CommunityArea. The Applicants development required road access over part of the Co-Respondentsland. No agreement had been reached between the Applicants and Co-Respondents inrelation to access.

The Council approved the Applicants application in late 2006 and the Co-Respondents

appealed the decision.

The issue to be determined was whether the 2005 approval of the Co-Respondentsdevelopment application for a reconfiguration of a lot by the Council was invalid and, if so,


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whether the declarations sought by the Applicants should be made or whether there weresufficient discretionary considerations to deny the applicants those declarations.


1. Section 2.6 of the Councils planning scheme, which provides that where approvalwas granted to rezone land under the provisions of the superseded Act, and theapproval is yet to be reflected in the Plan, the land will be treated as though it were inthe equivalent Area for the purpose of assessing development, should be interpretedso as to be in harmony with s6.1.26 of the IPA and the relevant provisions of the LocalGovernment (Planning and Environment) Act 1990 (PEA). Any attempt to imply ameaning of approval in s2.6 to include a rezoning approval that has not beenapproved by the Governor in Council and gazetted would be contrary to the expressprovisions in s6.1.26 of IPA and PEA.

2. The approval of the rezoning by the Court in 2003 was insufficient to change thezoning of the land from Future Urban Zone to Residential A Zone without the rezoningproceeding through the remaining statutory steps, i.e. application by the Council to theGovernor in Council for approval of the amendment of the planning scheme, approvalof the amendment by the Governor in Council and notification of the making of theorder in council in the Queensland Government Gazette.

3. Accordingly, the Co-Respondents land was designated as Emerging Community Areaat the time the Co-respondents development application for a reconfiguration of a lotwas approved and the level of assessment required was impact assessment (generallyinappropriate). Therefore, the purported development approval was invalid and is ofno force or effect.

4. There are no matters, operating individually or collectively, which would justify a denialof the declarations sought by the Applicants:

(1) Whilst time had passed since the granting of the development approval in 2005and the commencement of the Application for declarations by the Applicants,the delay was not a significant factor in the factual mix.

(2) There are genuine public interest considerations which coincide with the privateinterests of the Applicants, and the existence of the private interests of theApplicants is not a disentitling factor to any relief to which the Applicants maybe entitled.

(3) Whilst the Co-Respondents spent close to half a million dollars in reliance onthe development approval in pursuing their development, there is an obviouscourse open to the Co-Respondents to seek to regularise the situation, tomitigate any loss, and to continue with their development.

(4) To deny the declarations sought by the Applicants would endorse theperpetuation of

Environment and Planning Qld Court Updates Digest 2008

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