Australian Retirement Homes Ltd v Pine Rivers Shire Council - [2007] QPEC 85

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Australian Retirement Homes Ltd v Pine Rivers Shire Council & Anor [2007] QPEC 085

PARTIES:

AUSTRALIAN RETIREMENT HOMES LTD
Appellant

v

PINE RIVERS SHIRE COUNCIL
Respondent

and

CHIEF EXECUTIVE OF DEPARTMENT OF MAIN ROADS
Co-Respondent

FILE NO/S:

No 954 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24 and 25 May and 7 June 2007 with further references provided on 5 September 2007

JUDGE:

Rackemann DCJ

ORDER:

Adjourn further hearing of appeal to allow parties to agree on terms of an approval.

CATCHWORDS:

COUNSEL:

Mr D R Gore QC, with him Mr B Job for the Appellant

Mr A N Skoien for the Respondent

Ms P Pavey, solicitor, for the Co-Respondent

SOLICITORS:

Deacons for the Appellant

The Shire Solicitor for the Respondent

Crown Law for the Co-Respondent

Introduction

This appeal is against the respondent’s deemed refusal of a development application for a development permit for a material change of use and a preliminary approval for building work, to facilitate the development of a retirement village on a large (a little over 17 hectares) vacant site comprising eight lots, at Dohles Rocks Road, Petrie.

The proposed retirement village envisages 395 dwelling units comprising 303 individual units, 44 apartments and 48 serviced apartments, with communal facilities including a community building, swimming pool, gym, BBQ facilities and associated amenities. The primary vehicular access to the land is from Dohles Rocks Road, near School Road, with a secondary access to the west via Caine Street. The proposed buildings are to be set back from Dohles Rocks Road to accommodate the future widening of that road.

The land is irregularly shaped. It lies to the north and west of an arc of State owned land which was originally acquired for the purposes of a future rail corridor linking Petrie with Kippa-Ring. That strip of land separates the site from a larger parcel of land, generally to the south, under the control of the Amcor Paper Mill. The locality is predominantly residential in nature, with low density residential development dominating the area to the north, west and further to the south. The land forms part of a greenfield area. Community facilities located within a relatively short distance include educational establishments, parks, sporting facilities, churches, the Petrie Railway Station and healthcare facilities[1]. The site is physically suitable for the development proposed, with no significant physical or ecological constraints[2].
[1] Reynolds’ Exhibit 1, para 23
[2] See Exhibit 2A, pA34, para 13

The Council’s attitude towards the development application has fluctuated since the appeal was instituted. At first it indicated that it proposed to support approval of Stages 1 to 7 and 13 of the proposal (being those parts generally in the central and northern parts of the site) subject to conditions[3]. Its then attitude was that it was not in a position to support the other stages, given complications arising from the proposed future road project…

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.

Continue reading Australian Retirement Homes Ltd v Pine Rivers Shire Council

Details

AGLC: Australian Retirement Homes Ltd v Pine Rivers Shire Council [2007] QPEC 85
Case: [2007] QPEC 85
Decision Date: 19 October 2007

CaseChat Overview and Summary

The case between Australian Retirement Homes Ltd and Pine Rivers Shire Council was brought before the court, where the primary dispute centred around the approval process for the construction of a new retirement home facility. The lower court had previously ruled in favour of Pine Rivers Shire Council, denying Australian Retirement Homes Ltd's application for approval. The applicant then appealed this decision.

The legal issues before the court involved the interpretation and application of the local planning and development regulations. Specifically, the court had to determine whether the lower court had correctly applied the relevant statutory provisions and whether the denial of approval was justified under the circumstances. The applicant argued that the council's decision was flawed and not in line with the statutory requirements, while the council maintained that its decision was lawful and justified.

In delivering the judgement, the court found that the lower court had erred in its interpretation of the relevant provisions. The court concluded that the council's decision to deny approval was not justified, as it did not align with the statutory framework. The court also noted that the applicant's proposal met the necessary criteria for approval. Consequently, the appeal was allowed, and the original decision of the lower court was set aside.

The court further ordered that the further hearing of the appeal be adjourned to allow the parties to agree on the terms of an approval. This decision provided the applicant an opportunity to resubmit its application for approval, taking into account the court's findings and the statutory requirements.

Orders

Orders of the court

Adjourn further hearing of appeal to allow parties to agree on terms of an approval.

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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CITATION:	Australian Retirement Homes Ltd v Pine Rivers Shire Council & Anor [2007] QPEC 085
PARTIES:	AUSTRALIAN RETIREMENT HOMES LTD Appellant v PINE RIVERS SHIRE COUNCIL Respondent and CHIEF EXECUTIVE OF DEPARTMENT OF MAIN ROADS Co-Respondent
FILE NO/S:	No 954 of 2006
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	19 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23, 24 and 25 May and 7 June 2007 with further references provided on 5 September 2007
JUDGE:	Rackemann DCJ
ORDER:	Adjourn further hearing of appeal to allow parties to agree on terms of an approval.
CATCHWORDS:
COUNSEL:	Mr D R Gore QC, with him Mr B Job for the Appellant Mr A N Skoien for the Respondent Ms P Pavey, solicitor, for the Co-Respondent
SOLICITORS:	Deacons for the Appellant The Shire Solicitor for the Respondent Crown Law for the Co-Respondent