Carrigan v Goondiwindi Regional Council

[2016] QPEC 8

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Carrigan v Goondiwindi Regional Council [2016] QPEC 8

PARTIES:

GRANT PATRICK CARRIGAN
(applicant)

v

GOONDIWINDI REGIONAL COUNCIL
(respondent)

FILE NO/S:

2346 of 2015

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

17 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2016

JUDGE:

Jones DCJ

ORDERS/
 RULINGS:

The use constitutes a material change of use of the premises.1.          

The use falls within the definition of a detached house for the purposes of the planning scheme.  2.          

HEARING OF AN APPLICATION – APPLICATION FOR DETERMINATION OF PRELIMINARY ISSUES – Whether shed unlawfully constructed on the subject land constituted a material change of use for the purposes of the Sustainable Planning Act 2009 – and, if so, whether the use fell within the definition of “detached house” or “storage facility” or is otherwise undefined under the relevant planning scheme

FINDINGS OF FACT – Where court invited to make findings adverse to the applicant based on circumstantial evidence – whether such findings open on the evidence

MATERIAL CHANGE OF USE – whether construction of large shed on large rural residential allotment amounted to a material change of use because – it introduced a new use to the premises – it constituted a re-establishment of an abandoned use – it was a material increase in the scale and/or intensity of the use of the premises.

Sustainable Planning Act 2009

Waggamba Shire Council Planning Scheme 2006

Leeming v City of Port Adelaide [No. 2] (1987) 62 LGRA 296

Maroochy Shire Council v Barnes [2001] QPELR 475

Gorrie & Anor v Mackay City Council & Anor [2003] QPELR 328

Morgan-Phoenix v Gold Coast City Council [2007] QPEC 31

Southside Action Group Against the Proposed Dump at Rochedale Incorporated v Brisbane City Council & Anor (1992) 76 LGRA 402

COUNSEL:

Ms M J Kefford for the applicant
Mr J T Dillon for the respondent

SOLICITORS:

McCullough Robertson for the applicant
King & Company for the respondent

1. This application is concerned with determining the following questions:

“(1)       whether the use of the proposed shed constitutes a material change of use of the subject land; and

(2)if the use of the proposed shed constitutes a material change of use of the subject land, whether the use falls within the definition of ‘detached house’ or ‘storage facility’ provided in the Waggamba Shire Council planning scheme 2006 or, alternatively whether the use is a use not defined in the planning scheme.”

1. For the reasons set out below the answer to those questions are as follows:

1. The use constitutes a material change of use of the premises.       

The use falls within the definition of a detached house for the purposes of the planning scheme.  2.          

Background               

1. The applicant is the owner of a 2.798 hectare lot located on the outskirts of Goondiwindi.  The land is located in the Low Density Residential Precinct of the Low Density Residential Zone of…