Bruce v Caloundra City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bruce v Caloundra City Council [2007] QPEC 046

PARTIES:

ROBERT BRUCE

Appellant

V

CALOUNDRA CITY COUNCIL

Respondent

FILE NO/S:

Maroochydore 393/2005

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Maroochydore

DELIVERED ON:

1 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2007 (site inspection); 27 & 28 March 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 Appeal allowed

2 Adjourn the matter for further mention on 26 June 2007

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONFLICT WITH TRANSITIONAL (SUPERSEDED) PLANNING SCHEME – rural residential development proposed in rural designation – nature and extent of conflict – interpretation of implementation clauses – whether there are sufficient Planning grounds to justify

Integrated Planning Act 1997

Local Government (Planning and Environment) Act 1990

Cases considered:

Beck v Atherton Shire Council [1991] QPLR 56
Grosser v Council of the City of Gold Coast [2002] QPELR 207
Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527
Luke v Maroochy Shire Council & Anor [2003] QPELR 447
Mackay Conservation Group Inc v Mackay City Council [2006] QPELR 209
Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648
Palyarus v Gold Coast City Council [2004] QPELR 162
Roosterland Pty Ltd v Brisbane City Council (1986) QPLR 515
Titanium Enterprises Pty Ltd v Caloundra City Council [2007] QPELR 154
Weightman v Gold Coast City Council [2003] 2 Qd R 441
Woolworths v Maryborough City Council (No 2) [2006] 1 Qd R 273

COUNSEL:

S Keim SC and C Klease for appellant
EJ Morzone for respondent

SOLICITORS:

P&E Law for appellant
Heiner & Doyle, Solicitors for respondent

1. This is an appeal by Mr Bruce against a decision of the Caloundra City Council to refuse[1] an application for a development permit over land at 1318 Peachester Road[2], Peachester for a material change of use (consequential amendment to a planning scheme) and reconfiguration (ie, subdivision) of one lot into six. 

   [1]Decision notice dated 2 November 2005, reproduced in Exhibit 5, Report of Gary Dillon, p 44

   [2]More particularly described as Lot 6 on SP103477

1. The site is a remnant of the large freehold grazing property established at the turn of last century.  Portion 231, as it was then described, has at various times supported a timber mill (logging camp and bullock paddock), an unsuccessful dairy project and, since it was purchased by Mr Bruce and his wife in 1974, small scale grazing and other primary production ventures[3].  Mr Bruce deposes to a number of physical characteristics of the land which make it unsuitable for more intensive, and economical, farming activities[4]. 

   [3]Exhibit 8, Statement of Mr Robert Douglas Wallace Bruce dated 23 March 2007

   [4]Ibid, p2 [8]

1. Since 1986 further subdivisions have resulted in the removal of three parts of the original Portion.  First, three acres of the land to the South West was acquired for quarry purposes.  Secondly, a rural lot of eight hectares was taken from the land (with an easement providing access to…