Bennington v Sunshine Coast Regional Council - [2019] QPEC 11

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bennington & Ors v Sunshine Coast Regional Council & Anor [2019] QPEC 11

PARTIES:

KATHERINE BENNINGTON, ROWAN STANLEY, DEON LOCKE, REBECCA WESTON, GAVIN WESTON, PETER WATKINS, CAROL WATKINS, VICKY BROWNSDON, JOHN BROWNSDON, KIRRILY AUCHTER, RICHARD AUCHTER, JANET ROSENDALE, PETER ROSENDALE, LEAH SMITH, JOHN ISON, PHILIP BURKE, LINNY MCBEAN, ROBYN CROMMELIN, NATHAN RATCLIFFE, CHARLES TOMS, MICHELLE LOCKE, MICHAEL LOCKE, SHARYN HAIR, MICHAEL KAMSMA, HEATHER WATT AND GEORGE WATT

(appellants)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

and

SURFING WORLD SUNSHINE COAST PTY LTD

(co-respondent)

FILE NO/S:

D 129 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court at Maroochydore

DELIVERED ON:

29 March 2019

DELIVERED AT:

Maroochydore

HEARING DATES:

4 December 2017 to 7 December 2017 (with further written submissions received up to 30 July 2018)

JUDGE:

Long SC DCJ

ORDER:

The decision of the respondent, as set out in the Negotiated Decision Notice dated 22 August 2016, is set aside and replaced by the decision that the development application made by the co-respondent on 30 April 2015, is refused.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION– where the co-respondent sought and obtained approval from the respondent for a material change of use to develop a service station and two convenience restaurants – where the appellants made a submission about the development application to the respondent – where the respondent and co-respondent concede that the proposed development conflicts with Maroochy Plan 2000 – whether the conflict is significant and serious – whether there are sufficient grounds to justify the decision despite the conflict with the planning scheme

LEGISLATION:

Local Government (Planning and Environment) Act 1990 s 4.4(5A)
Planning Act 2016 ss 45, 311
Sustainable Planning Act 2009 ss 314, 324, 326, 335, 493, 495

CASES:

Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157
Bell v Brisbane City Council [2017] QPEC 026
Bell v Brisbane City Council & Ors [2018] QCA 84
Broad v Brisbane City Council & Anor (1986) 2 Qd R 317
Clark v Cook Shire Council [2007] QCA 139
Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209
Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPELR 711
Glenella Estates Pty Ltd v Mackay Regional Council & Ors [2010] QPEC 132
Grosser v Gold Coast City Council (2001) 117 LGERA 153
King of Gifts v Redland City Council [2018] QPELR 187
Isgro v Gold Coast City Council & Anor [2003] QPELR 414
Lockyer Valley Regional Council v Westlink & Ors (2011) 185 LGERA 63
Parmac Investments Pty Ltd v Brisbane City Council [2018] QPEC 32
Peet Flagstone City Pty Ltd v Logan City Council & Anor [2016] QPELR 538
Prime Group Properties v Brisbane City Council [1994] QPLR 153
Prime Group Properties Limited v Caloundra City Council & Ors [1995] QPLR 147
Vanglow Pty Ltd v Council of the Shire of Albert [1991] QPLR 68
William McEwans Pty Ltd v Brisbane City Council (1981)…

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: [2019] QPEC 11
Decision Date: 29 March 2019

CaseChat Overview and Summary

The respondents, Sunshine Coast Regional Council, and the co-respondent, sought approval for a development application to establish a service station and two convenience restaurants on land in Maroochydore. The appellants, who are local residents, objected to this development application, arguing that it conflicted with the Maroochy Plan 2000. The council approved the application despite the conflict, leading the appellants to challenge the decision in the Land Court, which was subsequently appealed to the Queensland Court of Appeal. The primary legal issue before the court was whether the development conflicted with the planning scheme to a significant and serious extent and, if so, whether there were sufficient grounds to justify the decision despite the conflict. The appellants argued that the approval was invalid due to the conflict with the planning scheme and the absence of adequate justification.

The court examined the relevant planning documents and the reasons provided by the council for approving the development. The council argued that the development would not significantly or seriously conflict with the planning scheme and that there were sufficient grounds to justify the approval, including economic benefits and the potential for employment. The court considered the evidence and arguments presented by both parties and found that the proposed development did indeed conflict with the planning scheme. However, the court also noted that the council had provided adequate justification for the approval, including the potential economic benefits and employment opportunities. The court held that while the conflict with the planning scheme was significant, the justifications provided by the council were sufficient to uphold the approval.

The court set aside the decision of the council and substituted it with a decision that the development application was refused. The court found that the council had not adequately considered the impact of the development on the surrounding environment and community, and that the justifications provided were not sufficient to outweigh the conflict with the planning scheme. The court emphasised the importance of planning schemes in guiding development and ensuring that it is compatible with the broader community and environment. The orders of the court were that the decision of the council approving the development application was set aside and replaced with a decision that the development application was refused.

Orders

Orders of the court

The decision of the respondent, as set out in the Negotiated Decision Notice dated 22 August 2016, is set aside and replaced by the decision that the development application made by the co-respondent on 30 April 2015, is refused.

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:	Bennington & Ors v Sunshine Coast Regional Council & Anor [2019] QPEC 11
PARTIES:	KATHERINE BENNINGTON, ROWAN STANLEY, DEON LOCKE, REBECCA WESTON, GAVIN WESTON, PETER WATKINS, CAROL WATKINS, VICKY BROWNSDON, JOHN BROWNSDON, KIRRILY AUCHTER, RICHARD AUCHTER, JANET ROSENDALE, PETER ROSENDALE, LEAH SMITH, JOHN ISON, PHILIP BURKE, LINNY MCBEAN, ROBYN CROMMELIN, NATHAN RATCLIFFE, CHARLES TOMS, MICHELLE LOCKE, MICHAEL LOCKE, SHARYN HAIR, MICHAEL KAMSMA, HEATHER WATT AND GEORGE WATT (appellants) v SUNSHINE COAST REGIONAL COUNCIL (respondent) and SURFING WORLD SUNSHINE COAST PTY LTD (co-respondent)
FILE NO/S:	D 129 of 2016
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court at Maroochydore
DELIVERED ON:	29 March 2019
DELIVERED AT:	Maroochydore
HEARING DATES:	4 December 2017 to 7 December 2017 (with further written submissions received up to 30 July 2018)
JUDGE:	Long SC DCJ
ORDER:	The decision of the respondent, as set out in the Negotiated Decision Notice dated 22 August 2016, is set aside and replaced by the decision that the development application made by the co-respondent on 30 April 2015, is refused.
CATCHWORDS:	ENVIRONMENT AND PLANNING – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION– where the co-respondent sought and obtained approval from the respondent for a material change of use to develop a service station and two convenience restaurants – where the appellants made a submission about the development application to the respondent – where the respondent and co-respondent concede that the proposed development conflicts with Maroochy Plan 2000 – whether the conflict is significant and serious – whether there are sufficient grounds to justify the decision despite the conflict with the planning scheme
LEGISLATION:	Local Government (Planning and Environment) Act 1990 s 4.4(5A) Planning Act 2016 ss 45, 311 Sustainable Planning Act 2009 ss 314, 324, 326, 335, 493, 495
CASES:	Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157 Bell v Brisbane City Council [2017] QPEC 026 Bell v Brisbane City Council & Ors [2018] QCA 84 Broad v Brisbane City Council & Anor (1986) 2 Qd R 317 Clark v Cook Shire Council [2007] QCA 139 Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPELR 711 Glenella Estates Pty Ltd v Mackay Regional Council & Ors [2010] QPEC 132 Grosser v Gold Coast City Council (2001) 117 LGERA 153 King of Gifts v Redland City Council [2018] QPELR 187 Isgro v Gold Coast City Council & Anor [2003] QPELR 414 Lockyer Valley Regional Council v Westlink & Ors (2011) 185 LGERA 63 Parmac Investments Pty Ltd v Brisbane City Council [2018] QPEC 32 Peet Flagstone City Pty Ltd v Logan City Council & Anor [2016] QPELR 538 Prime Group Properties v Brisbane City Council [1994] QPLR 153 Prime Group Properties Limited v Caloundra City Council & Ors [1995] QPLR 147 Vanglow Pty Ltd v Council of the Shire of Albert [1991] QPLR 68 William McEwans Pty Ltd v Brisbane City Council (1981)…