Brown v Moreton Bay Regional Council - [2011] QPEC 71

[2011] QPEC 71

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3199 of 2010

GRAEME ADRIAN BROWN & ORS	Applicant
and
MORETON BAY REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 09/05/2011

JUDGMENT

CATCHWORDS

Sustainable Planning Act 2009 s 440

Integrated Planning Act 1997 s 3.2.1, s 4.1.5A

Council refused to receive associated development applications for material change of use (MCU) for "rural residential" and reconfiguration of a lot (ROL) in the mistaken understanding that the draft regulatory provisions in the Draft South East Queensland Regional Plan that had come into effect on 27 October 2004 applied (to impose requirements the applicants had not satisfied) - Council accepted that deficiencies in the applications such as the omission of land that ought to have been included in the MCU application could have been attended to if an opportunity had been given in 2004

HIS HONOUR: This is an application made in unusual circumstances unlikely ever to be replicated. That ought to be noted against the possibility that the Court's order may be relied on as a precedent detracting from the potency of the South-East Queensland Regional Plan, the Draft Regulatory Provisions in particular.

In Chang v Laidley Shire Council [2007] HCA 37; [2007] QPELR 655, the High Court established that the overnight removal of development rights which certain owners might have understandably been relying upon their having had been effectively achieved.

What is special about this case is that the Council has conceded it made an error in judging that a pair of development applications the Brown family lodged or attempted to lodge on 8th of November 2004 fell foul of the draft South‑East Queensland Regional Plan in force on that day. It had been in force since the 27th of October 2004.

The court's orders and preceding declarations are as follows:

IT IS DECLARED THAT:

(a)the development application (the “MCU Application”) that Graeme Brown attempted to lodge on 8 November 2004 seeking development permit for material change of use (rural to rural residential) in respect of land at Clear Mountain Road, Clear Mountain (the “subject land”), complied with the Draft Regulatory Provisions of the Draft South-East Queensland Regional Plan in force on 8 November 2004;
(b)the MCU Application should be treated as though it were a properly made development application seeking a development permit for material change of use of the subject land, being Lot 3 on RP126780 and Part of Lot 22 on SP112539, from rural purposes to rural residential purposes by way of five lot rural residential development generally in accordance with Dimron & Associates Consulting Surveyors Drawing B dated 13 October 2004 (the “proposed development”), notwithstanding that:
(i)the MCU Application failed to contain a description of all of the subject land in the lot on plan description in Part A of the Form 1 Development Application;
(ii)fees for the MCU Application were not paid;
(iii)the MCU Application failed to include the consent of the owner of part of the…

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: [2011] QPEC 71
Decision Date: 09/05/2011

CaseChat Overview and Summary

In the case of Graeme Adrian Brown & Ors v Moreton Bay Regional Council, the applicants sought judicial review of the Council's refusal to accept their development applications for a material change of use (MCU) and reconfiguration of a lot (ROL) of land in Clear Mountain, Queensland. The dispute arose from the Council's misunderstanding of the draft regulatory provisions of the South-East Queensland Regional Plan, which had come into effect on 27 October 2004. The Council believed that the applicants' development applications were contrary to these provisions, leading to their rejection. However, the applicants argued that the Council had misapplied the draft regulatory provisions and that the deficiencies in their applications could have been rectified if they had been given the opportunity to do so in 2004.

The legal issues before the court were whether the Council's rejection of the development applications was justified and whether the court should grant relief under the Sustainable Planning Act 2009 and Integrated Planning Act 1997. The court had to determine whether the draft regulatory provisions applied to the applicants' development applications and whether the Council's misunderstanding of these provisions warranted the granting of relief.

The court found that the Council had indeed made an error in its interpretation of the draft regulatory provisions and that the applicants' development applications were not contrary to these provisions. The court declared that the MCU application complied with the draft regulatory provisions in force on 8 November 2004 and that the ROL application was the subject of a ministerial exemption. The court also ordered that the applicants pay the required application fees and provide the original application documents to the Council, upon which the Council would assess the applications as if they were properly made on their respective dates of attempted lodgement.

The court's decision was based on the unique circumstances of the case, which involved the Council's error in applying the draft regulatory provisions and the applicants' attempt to exercise their development rights in 2004. The court considered the potential impact of its decision on the potency of the South-East Queensland Regional Plan but ultimately found that it was appropriate to grant the requested relief in this case.

Orders