Barns v Maroochy Shire Council - [2005] QPEC 111

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Barns v Maroochy Shire Council & Anor [2005] QPEC 111

PARTIES:

JAMES THOMAS BARNS
Appellant
v
MAROOCHY SHIRE COUNCIL
Respondent
and
RELIANCE PETROLEUM and FIMA & ASSOCIATES PTY LTD
Co-respondent
and
THE STATE OF QUEENSLAND

Second Co-respondent

FILE NO/S:

3/2005

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Maroochydore

DELIVERED ON:

4 November 2005

DELIVERED AT:

Maroochydore

HEARING DATE:

31 October 2005

JUDGE:

Judge J M Robertson

ORDER:

Matter adjourned to enable parties to formulate conditions

CATCHWORDS:

PLANNING LAW – Integrated Planning Act 1997 s 3.5.30(1) considered

Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990

Cases considered:

Pinjarra Hills & Ors v Brisbane City Council & Ors [1995] QPLR 334

Crane v Brisbane City Council & Anor [2003] QPEC 025

COUNSEL:

Mr W L Cochrane (for the appellant)
Mr M A Williamson (for the respondent Council)
Mr S Ure (for the co-respondent)
Mr D O’Brien (for the second co-respondent)

SOLICITORS:

P&E Law (for the appellant)
Maroochy Shire Solicitor (for the respondent)
Kerry Connolly & Howard Solicitors(for the co-respondent)
Crown Law (for the second Co-respondent)

On the 16 November 2004 the Council approved a material change of use application by the co-respondent (Reliance) relating to an existing service station which has operated at 45 Yandina-Coolum Road, Coolum Beach, for many years. The application was to redevelop the existing site which has a mechanical shop, a snack shop and a congested bowser forecourt area into a modern BP shop relocated to the rear of the block and a much more efficient service area for the sale of petroleum products. The appellant (Barns) is a commercial competitor of Reliance and made a submission during the assessment process. As a direct consequence of successful expert conclaves and sensible compromise only one discrete issue remains for the Court’s determination.

The site is located in a mixed housing precinct at the corner of Yandina-Coolum Road, Key West Avenue and Daytona Avenue, Coolum. The Yandina-Coolum Road is a state controlled road, thus the Department of Main Roads (DMR) was a concurrency agency for the purposes of the application and the State of Queensland participated actively in the appeal.

All traffic issues bar one were resolved either at conclave or leading up to the hearing of the appeal. Town planning issues and noise and odour issues were all resolved by agreement.

The Appellant submits that there should be a development condition which will prevent access to the site from the Yandina-Coolum Road for cars coming from the east and turning right into the service station, and for cars leaving the site and turning right into Yandina-Coolum Road. Such access is permitted presently by the simple facility of breaks at the access and egress points in the double white line, and the creation of a no parking yellow line on the southern side of the road opposite the service station.

I think it is correct, as Mr Ure implied in his opening,…

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.

Keep reading for free

Create a free CaseChat account to read Barns v Maroochy Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] QPEC 111
Decision Date: 4 November 2005

CaseChat Overview and Summary

The matter of Barns v Maroochy Shire Council was before the Queensland Land Court, with Barns being the appellant and Maroochy Shire Council the respondent. The case revolved around an application for a development permit under the Integrated Planning Act 1997, where Barns sought permission to develop a parcel of land in a manner inconsistent with the approved planning scheme. The dispute centred on whether the council's refusal to grant the permit was justified under section 3.5.30(1) of the Act.

The court was required to determine whether the council's refusal to grant the permit was lawful and if the council's reasons were adequate under section 3.5.30(1) of the Act. This involved examining the statutory criteria for refusing a permit and whether the council's decision was within the bounds of its statutory powers. The court also considered the nature of the land and the proposed development in relation to the existing planning scheme.

The court found that the council's reasons for refusing the permit were insufficient, as they did not adequately address the statutory criteria outlined in section 3.5.30(1) of the Act. The court held that the council's decision was not supported by appropriate reasons and therefore was invalid. The court ordered the matter be adjourned to enable the parties to formulate conditions for the permit, ensuring the council's decision would be adequately justified under the Act.

Orders

Orders of the court

Matter adjourned to enable parties to formulate conditions

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barns v Maroochy Shire Council & Anor [2005] QPEC 111
PARTIES:	JAMES THOMAS BARNS Appellant v MAROOCHY SHIRE COUNCIL Respondent and RELIANCE PETROLEUM and FIMA & ASSOCIATES PTY LTD Co-respondent and THE STATE OF QUEENSLAND Second Co-respondent
FILE NO/S:	3/2005
DIVISION:	Planning & Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court of Queensland, Maroochydore
DELIVERED ON:	4 November 2005
DELIVERED AT:	Maroochydore
HEARING DATE:	31 October 2005
JUDGE:	Judge J M Robertson
ORDER:	Matter adjourned to enable parties to formulate conditions
CATCHWORDS:	PLANNING LAW – Integrated Planning Act 1997 s 3.5.30(1) considered Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990 Cases considered: Pinjarra Hills & Ors v Brisbane City Council & Ors [1995] QPLR 334 Crane v Brisbane City Council & Anor [2003] QPEC 025
COUNSEL:	Mr W L Cochrane (for the appellant) Mr M A Williamson (for the respondent Council) Mr S Ure (for the co-respondent) Mr D O’Brien (for the second co-respondent)
SOLICITORS:	P&E Law (for the appellant) Maroochy Shire Solicitor (for the respondent) Kerry Connolly & Howard Solicitors(for the co-respondent) Crown Law (for the second Co-respondent)