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Ausco Modular Pty Ltd v Western Downs Regional Council

Ausco Modular Pty Ltd v Western Downs Regional Council

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Case Copied 11 October 2017 66 min read

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PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Ausco Modular Pty Ltd v Western Downs Regional Council & Anor [2017] QPEC 58
PARTIES:	AUSCO MODULAR PTY LTD (ACN 010 654 994) (appellant) v WESTERN DOWNS REGIONAL COUNCIL (respondent) and GROW CHINCHILLA PTY LTD (ACN 611 439 368) (co-respondent)
FILE NO/S:	263 of 2017
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	11 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	11, 12, 13, 14, 15, 18 and 20 September 2017 and further written submissions on 4 October 2017
JUDGE:	Kefford DCJ
ORDER:	The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of conditions.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a workers accommodation village – whether there is conflict with the planning scheme – whether the use will have unacceptable social planning impacts – whether the use will have unacceptable traffic impacts – whether the use will have unacceptable noise, lighting, odour or dust impacts – whether there is a need for the proposed development – whether there are sufficient grounds to approve the development despite conflict with the planning scheme
LEGISLATION:	Planning Act 2016 (Qld), s 311 Sustainable Planning Act 2009 (Qld), , s 314, s 324, s 326
CASES:	Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, approved Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QCA 60; [2001] 1 Qd R 347, applied Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157, distinguished Bassingthwaighte v Roma Town Council [2010] QPEC 91; [2011] QPELR 63, approved Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, approved Broad v Brisbane City Council & the Baptist Union of Queensland [1986] 2 Qd R 317, applied Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209, distinguished Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, approved Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, approved Grosser v Gold Coast City Council [2001] QCA 423; (2001) 117 LGERA 153; [2002] QPELR 207, distinguished Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, approved Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [1999] QCA 510; [2001] 1 Qd R 372, applied Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved John Gimpel & Perry Morphett & Associates v Brisbane City Council [1988] QPLR 5, distinguished Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203, approved Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, distinguished Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QPEC 58
Decision Date: 11 October 2017

CaseChat Overview and Summary

Ausco Modular Pty Ltd appealed against the Western Downs Regional Council's refusal of a development application for a change of use permit for a workers accommodation village. The dispute centred around whether the proposed use of the land would conflict with the existing planning scheme, and whether the development would result in unacceptable social, traffic, noise, lighting, odour, or dust impacts. The council argued that the proposed use of the land would lead to significant negative impacts on the local community, traffic, and environment. Ausco Modular contended that the proposed development would not result in unacceptable impacts and that there was a need for the development.

The court had to determine whether there was a conflict between the proposed use of the land and the planning scheme, and whether the social, traffic, noise, lighting, odour, or dust impacts would be unacceptable. The court also had to consider whether there was a need for the proposed development and whether there were sufficient grounds to approve the development despite the conflict with the planning scheme. The court found that the proposed development would not result in unacceptable impacts and that there was a need for the development. The court also found that there were sufficient grounds to approve the development despite the conflict with the planning scheme.

The appeal was allowed, and the court adjourned the further hearing to allow for the formulation of conditions. The court held that the proposed development would not result in unacceptable social, traffic, noise, lighting, odour, or dust impacts, and that there was a need for the development. The court found that the proposed use of the land was not inconsistent with the planning scheme, and that there were sufficient grounds to approve the development despite the conflict with the planning scheme. The appeal will, in due course, be allowed, and the court will adjourn the further hearing to allow for the formulation of conditions.

Orders

Orders of the court

The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of conditions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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