Bassingthwaighte v Roma Town Council & Ors - [2010] QPEC 91

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91

PARTIES:

DAVID AND SUZANNE BASSINGTHWAIGHTE
(Appellants)

AND

ROMA TOWN COUNCIL
(Respondent)

AND

DEPARTMENT OF MAIN ROADS
(First Co-respondent)

AND

OSWALD BEHREND, STEVEN AND CATHERINE DUFF, JOCK DOUGLAS, SONIA HARLAND, RANALD FERRIER, VICTOR RONOSCH, BRETT AND TERRI MILLER, DIANE FITZGERGALD, LAWRENCE FITZGERALD, RUSSELL GRULKE AND MARISSA GRULKE
(Second to Twelfth Co-respondents)

FILE NO:

3664/07

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

15 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10-20 May, 3, 4 June 2010

JUDGE:

R Jones DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

PLANNING LAW – Burden of Proof – proposed large cattle saleyards in environs of provincial town – refusal by council – significant number of submissions by local residents – town planning concerns about odour, traffic, noise and other amenity issues – conflicts with town plan – where revenue from existing saleyards used for general benefit of town

Integrated Planning Act 1997
Sustainable Planning Act 2009

Cases considered or referred to:

Arksmead Pty Ltd v Gold Coast City Council [2000] QCA 60; (2001) 1 Qd R 347

Aria Property Group Ltd v Maroochy Shire Council [2008] QCA 169

Arpedco Pty Ltd v Beaudesert Shire Council (1989) Qd R 88

Australian Capital Holdings Pty Ltd v Mackay City Council [2007] QPEC 100; (2008) QPELR 224

Baglow v Livingstone Shire Council (1983) QPLR 352

Benchmark Developments Pty Ltd v Cairns City Council [2007] QPEC 91

Brown v Brisbane City Council [2005] QPEC 26; (2005) QPELR 629

Brown v Moreton Shire Council (1972) 26 LGRA 3 10

Celledoni v Johnson Shire Council & Ors [2008] QPEC 104; (2009) QPELR 256

Grosser v G.C.C.C [2001] QCA 423

Isgro v Gold Coast City Council [2003] QPEC 002; (2003) QPELR 414

Jeteled Pty Ltd v Toowoomba City Council (1997) QPELR 213

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675

Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPEC 29; (2005) QPELR 648

Prime Group Properties Ltd v Caloundra City Council & Ors (1995) QPELR 147

Tully Sugar Ltd v Cassowary Coast Regional Council (2010) QPEC 41

Weightman v Gold Coast City Council [2002] QCA 234; (2003) 2 Qd R 441 (C/A)

Walker v Wilson (1991) 172 CLR 195

Watts and Hughes Properties Pty Ltd v Brisbane City Council(1998) QPELR 273

WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126

Webster v Caboolture Shire Council [2008] QPEC 82; (2009) QPELR 455

Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPEC 14; (2004) QPELR 337

Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; (2006) 1 Qd R 273 (C/A)

COUNSEL:

Mr D. Gore QC and Mr B. Job for the appellants

Mr C. Hughes SC and Mr M. Williamson for the respondent

Mr S. Ure for the second to twelfth co-respondents

No…

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: [2010] QPEC 91
Decision Date: 15 September 2010

CaseChat Overview and Summary

The case of Bassingthwaighte v Roma Town Council & Ors involved an applicant who sought approval for the construction of large cattle saleyards in the vicinity of a provincial town. The Roma Town Council, along with other respondents, opposed the proposal, citing numerous submissions from local residents expressing concerns about the potential impact on the community, including issues related to odour, traffic, noise, and general amenity. The council also argued that the proposal conflicted with the existing town plan and would adversely affect the community. The applicant appealed the council's decision to refuse the approval, challenging the council's assessment of the proposal's impact and the validity of the reasons given for refusal.

The central legal issue before the court was whether the council's refusal to approve the applicant's proposal for large cattle saleyards was justified. Specifically, the court needed to determine whether the council had properly considered the potential benefits to the town, such as the revenue generated by the existing saleyards which were used for the general benefit of the town, against the claimed detriments raised by the community. The applicant argued that the council had failed to adequately weigh the potential benefits against the detriments and had not provided sufficient reasons for the refusal.

The court found that the council had considered the proposal in the context of the town's planning framework and had provided detailed reasons for the refusal. The court held that the council was entitled to refuse the proposal based on the significant concerns raised by the community, which included odour, traffic, noise, and other amenity issues. The court further found that the council's decision was consistent with the town plan and that the applicant had not demonstrated that the council had acted unreasonably or failed to properly consider the potential benefits. The court concluded that the council's assessment of the proposal's impact was reasonable and that the refusal was justified.

In dismissing the appeal, the court upheld the council's decision to refuse the applicant's proposal for large cattle saleyards. The court found that the council had adequately considered the community's concerns and had provided sufficient reasons for the refusal. The applicant's appeal was dismissed, and the council's decision was affirmed.

Orders

Orders of the court

Appeal dismissed.

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:	Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91
PARTIES:	DAVID AND SUZANNE BASSINGTHWAIGHTE (Appellants) AND ROMA TOWN COUNCIL (Respondent) AND DEPARTMENT OF MAIN ROADS (First Co-respondent) AND OSWALD BEHREND, STEVEN AND CATHERINE DUFF, JOCK DOUGLAS, SONIA HARLAND, RANALD FERRIER, VICTOR RONOSCH, BRETT AND TERRI MILLER, DIANE FITZGERGALD, LAWRENCE FITZGERALD, RUSSELL GRULKE AND MARISSA GRULKE (Second to Twelfth Co-respondents)
FILE NO:	3664/07
DIVISION:	Planning and Environment
PROCEEDING:	Hearing of an appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	15 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	10-20 May, 3, 4 June 2010
JUDGE:	R Jones DCJ
ORDER:	Appeal dismissed.
CATCHWORDS:	PLANNING LAW – Burden of Proof – proposed large cattle saleyards in environs of provincial town – refusal by council – significant number of submissions by local residents – town planning concerns about odour, traffic, noise and other amenity issues – conflicts with town plan – where revenue from existing saleyards used for general benefit of town Integrated Planning Act 1997 Sustainable Planning Act 2009 Cases considered or referred to: Arksmead Pty Ltd v Gold Coast City Council [2000] QCA 60; (2001) 1 Qd R 347 Aria Property Group Ltd v Maroochy Shire Council [2008] QCA 169 Arpedco Pty Ltd v Beaudesert Shire Council (1989) Qd R 88 Australian Capital Holdings Pty Ltd v Mackay City Council [2007] QPEC 100; (2008) QPELR 224 Baglow v Livingstone Shire Council (1983) QPLR 352 Benchmark Developments Pty Ltd v Cairns City Council [2007] QPEC 91 Brown v Brisbane City Council [2005] QPEC 26; (2005) QPELR 629 Brown v Moreton Shire Council (1972) 26 LGRA 3 10 Celledoni v Johnson Shire Council & Ors [2008] QPEC 104; (2009) QPELR 256 Grosser v G.C.C.C [2001] QCA 423 Isgro v Gold Coast City Council [2003] QPEC 002; (2003) QPELR 414 Jeteled Pty Ltd v Toowoomba City Council (1997) QPELR 213 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPEC 29; (2005) QPELR 648 Prime Group Properties Ltd v Caloundra City Council & Ors (1995) QPELR 147 Tully Sugar Ltd v Cassowary Coast Regional Council (2010) QPEC 41 Weightman v Gold Coast City Council [2002] QCA 234; (2003) 2 Qd R 441 (C/A) Walker v Wilson (1991) 172 CLR 195 Watts and Hughes Properties Pty Ltd v Brisbane City Council(1998) QPELR 273 WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126 Webster v Caboolture Shire Council [2008] QPEC 82; (2009) QPELR 455 Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPEC 14; (2004) QPELR 337 Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; (2006) 1 Qd R 273 (C/A)
COUNSEL:	Mr D. Gore QC and Mr B. Job for the appellants Mr C. Hughes SC and Mr M. Williamson for the respondent Mr S. Ure for the second to twelfth co-respondents No…