Alex Gow Pty Ltd v Redland Shire Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Alex Gow Pty Ltd v Redland Shire Council & Ors [2008] QPEC 52

PARTIES:

ALEX GOW PTY LTD

Appellant

V

REDLAND SHIRE COUNCIL

Respondent

And

CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

First co-respondent by election

And

CORNELIA CIELSA, KIM MITCHELSON AND MONIQUE MITCHELSON, GRAHAM CARR, JOY DRUMM, CHRISTINE FORD, TERESA MURPHY AND ANTHONY MURPHY, JENNY SUTTER AND PETER SUTTER, MEREDITH MCNAB AND GREG MCNAB, ANNETTE WATSON, BRETT SAWYER, MARIE MARCHESE AND ANDERS DE FRANCIS, WILFRED DUMBLE AND BESSIE DUMBLE, PAUL KHOURY

Second co-respondents by election

And

JOHN RICHARD DARBYSHIRE

Third co-respondent by election

And

WENDY DERBYSHIRE

Fourth co-respondent by election

And

ALAN WINSLADE

Fifth co-respondent by election

And

JULIE ROBYN WINSLADE

Sixth co-respondent by election

And

NANKO HORVARTH

Seventh co-respondent by election

And

LOIS MARIE STEELE

Eighth co-respondent by election

FILE NO/S:

1520/2007

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

14 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Inspection 28 July; hearing 28, 29, and 30 July 2008; written submissions received 31 July 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING – PLANNING AND ENVIRONMENT – CONSTRUCTION OF PLANNING SCHEMES – CONFLICT WITH PLANNING SCHEMES – WHETHER SUFFICIENT GROUNDS TO OVERCOME CONFLICT – AMENITY – TRAFFIC – proposal for funeral parlour – whether conflict with former or present planning schemes – amenity – whether unacceptable impacts upon amenity – traffic

Integrated Planning Act 1997, ss 3.5.14, 4.1.52(2)(a), 6.1.30

Local Government (Planning and Environment) Act 1990, s4.4(5A)

Cases considered:
Acland Pastoral Co Pty v Rosalie Shire Council [2007] QPEC 112
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
Australian Funerals Pty Ltd v Maroochy [1994] QPLR 355
Bell v Noosa [1983] QPLR 311
Broad v Brisbane (1986) 2 Qd R 317
Campbell-Brown v Brisbane [1997] QPELR 147

Ecovale Pty Ltd v Gold Coast (1999) 2 Qd R 35

Feldhahn v Esk [1989] QPLR 91

Grosser v Gold Coast (2001) 117 LGERA 153

Kotku Education and Welfare Society Inc v Brisbane [2005] QPELR 267
Mackenzie v Brisbane [2000] QPELR 94
Rio Pioneer Gravel Co. Pty. Limited v. Warringah Shire Council (1969) 17 LGRA 153
Sempf v Gatton [1997] QPELR 198
Telstra Corp v Pine Rivers [2001] QPELR 350
Weightman v Gold Coast [2003] 2 Qd R 441
Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273

COUNSEL:

C Hughes SC and M Williamson for appellant
S Ure for respondent
M T Labone , directly briefed for second co-respondents by election

SOLICITORS:

Connor O’Meara for appellant
Deacons Lawyers for respondent

Alex Gow, a long established funeral director in south-east Queensland, wishes to construct a funeral parlour on land at Cleveland in a residential area presently occupied by a church (as envisaged by the current local planning scheme). Council refused approval for that purpose and was supported in its opposition by the group of local citizens named as the second co-respondents[1]. This is Alex Gow’s appeal against Council’s decision.

CaseChat Overview and Summary

In the case of Alex Gow Pty Ltd v Redland Shire Council, the dispute centred on a proposal by Alex Gow Pty Ltd to construct a funeral parlour in Victoria Point. The Redland Shire Council denied the development application on the grounds that it conflicted with the existing planning schemes, citing concerns about potential impacts on amenity and traffic. The matter was appealed to the Queensland Planning and Environment Court, which was required to determine whether the conflict with the planning schemes was sufficient to deny the application. The central legal issue was whether the proposed development would result in unacceptable impacts on the amenity of the area and whether it would cause significant traffic issues.

The Court considered the evidence presented regarding the potential impacts on amenity and traffic. It examined the compatibility of the proposed funeral parlour with the surrounding area, including residential properties, and the adequacy of traffic management measures proposed by the applicant. The Court also assessed whether the proposed development was consistent with the objectives of the planning schemes, particularly in relation to preserving the character of the area and managing traffic flow. Ultimately, the Court found that the applicant had not demonstrated that the proposed development would not cause unacceptable impacts on the amenity of the area or significant traffic issues. Consequently, the Court upheld the decision of the Council to refuse the development application.

The reasoning of the Court was grounded in the statutory framework governing planning schemes and the specific provisions of the Redland Shire Planning Scheme. It was held that the proposal did not meet the criteria for overcoming the conflict with the planning schemes, as it did not sufficiently address the concerns about amenity and traffic. The Court's decision was based on a detailed assessment of the evidence and the application of relevant planning principles.

The final orders of the Court were that the appeal by Alex Gow Pty Ltd was dismissed, thereby upholding the decision of the Redland Shire Council to refuse the development application for the funeral parlour.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Alex Gow Pty Ltd v Redland Shire Council & Ors [2008] QPEC 52
PARTIES:	ALEX GOW PTY LTD Appellant V REDLAND SHIRE COUNCIL Respondent And CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS First co-respondent by election And CORNELIA CIELSA, KIM MITCHELSON AND MONIQUE MITCHELSON, GRAHAM CARR, JOY DRUMM, CHRISTINE FORD, TERESA MURPHY AND ANTHONY MURPHY, JENNY SUTTER AND PETER SUTTER, MEREDITH MCNAB AND GREG MCNAB, ANNETTE WATSON, BRETT SAWYER, MARIE MARCHESE AND ANDERS DE FRANCIS, WILFRED DUMBLE AND BESSIE DUMBLE, PAUL KHOURY Second co-respondents by election And JOHN RICHARD DARBYSHIRE Third co-respondent by election And WENDY DERBYSHIRE Fourth co-respondent by election And ALAN WINSLADE Fifth co-respondent by election And JULIE ROBYN WINSLADE Sixth co-respondent by election And NANKO HORVARTH Seventh co-respondent by election And LOIS MARIE STEELE Eighth co-respondent by election
FILE NO/S:	1520/2007
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland
DELIVERED ON:	14 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	Inspection 28 July; hearing 28, 29, and 30 July 2008; written submissions received 31 July 2008
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	PLANNING – PLANNING AND ENVIRONMENT – CONSTRUCTION OF PLANNING SCHEMES – CONFLICT WITH PLANNING SCHEMES – WHETHER SUFFICIENT GROUNDS TO OVERCOME CONFLICT – AMENITY – TRAFFIC – proposal for funeral parlour – whether conflict with former or present planning schemes – amenity – whether unacceptable impacts upon amenity – traffic Integrated Planning Act 1997, ss 3.5.14, 4.1.52(2)(a), 6.1.30 Local Government (Planning and Environment) Act 1990, s4.4(5A) Cases considered: Acland Pastoral Co Pty v Rosalie Shire Council [2007] QPEC 112 Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 Australian Funerals Pty Ltd v Maroochy [1994] QPLR 355 Bell v Noosa [1983] QPLR 311 Broad v Brisbane (1986) 2 Qd R 317 Campbell-Brown v Brisbane [1997] QPELR 147 Ecovale Pty Ltd v Gold Coast (1999) 2 Qd R 35 Feldhahn v Esk [1989] QPLR 91 Grosser v Gold Coast (2001) 117 LGERA 153 Kotku Education and Welfare Society Inc v Brisbane [2005] QPELR 267 Mackenzie v Brisbane [2000] QPELR 94 Rio Pioneer Gravel Co. Pty. Limited v. Warringah Shire Council (1969) 17 LGRA 153 Sempf v Gatton [1997] QPELR 198 Telstra Corp v Pine Rivers [2001] QPELR 350 Weightman v Gold Coast [2003] 2 Qd R 441 Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273
COUNSEL:	C Hughes SC and M Williamson for appellant S Ure for respondent M T Labone , directly briefed for second co-respondents by election
SOLICITORS:	Connor O’Meara for appellant Deacons Lawyers for respondent