Celledoni v Johnstone Shire Council - [2008] QPEC 104

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Celledoni v Johnstone Shire Council & Ors [2008] QPEC 104

PARTIES:

EDA CELLEDONI and GRAHEME CELLEDONI
(Appellants)
v
JOHNSTONE SHIRE COUNCIL
(Respondent)
KEN FOX
(First Co-Respondent)
CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994
(Second Co-Respondent)

FILE NO/S:

287 of 2007

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

14 May 2008

DELIVERED AT:

Cairns

HEARING DATE:

February 2008

JUDGE:

White DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Mr D P Morzone for the appellants
Mr W L Cochrane for the first co-respondent

SOLICITORS:

Marino Moller Lawyers for the appellants
Mr A Kerr, MacDonnells Law for the respondent
Miller Bou-Samra for the first co-respondent
Mr P B Featherstone, Lehmann Featherstone Lawyers for the second co-respondent

On 28 September 2007 the respondent Council approved the co-respondent’s development application for a material change of use to establish a Rural Service Industry – Heavy Vehicle Service Centre – on land situated on the corner of South Boogan Road and the Bruce Highway just south of the township of Mourilyan. The subject parcels of land are described as Lots 11 and 23 on NR 4918 Parish of Mourilyan. These parcels have a total area of 21.4477 hectares. The land which was specifically the subject of the application has an area of approximately 3.07 hectares. The respondent also approved the co-respondent’s application for reconfiguration of the lots to establish a separate title to the land upon which the proposed development is to be carried out.

The co-respondent was, at all material times, the authorised agent of Troncs Carrying Service. For convenience I will describe that company as the co-respondent throughout these reasons. It is privately owned. Its main business involves carrying out important and extensive transport services to the Far North Queensland sugar industry. It is necessary to describe that business which I will summarise from the statement of Denis Wright (ex 12), the North Queensland Manager of the co-respondent.

Sugar cane is harvested, transported to sugar mills, crushed and processed in a season (the crushing season) which lasts approximately six months from June to November inclusive each year. The co-respondent has contracts for the cartage of harvested sugar cane and sugar products with the eight sugar mills located north of Townsville to the Mossman Mill in the Far North. The co-respondent’s North Queensland fleet consists of approximately 75 prime movers and in excess of 160 trailers. During the sugar season the fleet is disbursed from Innisfail to regional operations in Cairns, Mossman, Ingham and Townsville. The greater part of the fleet stays in the Innisfail area to service the local mills. The vast majority of the transport units operate in what is known as a B-double configuration. This consists of a prime mover towing two semi-trailers with a total length of 25 metres. Attachment D to ex 12 provides photographic illustration of these units. The co-respondent’s operations in the Innisfail area which are of most significance to this appeal, consists of the following:-

(a) 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: [2008] QPEC 104
Decision Date: 14 May 2008

CaseChat Overview and Summary

In the Planning and Environment Court of Queensland, Eda Celledoni and Graeme Celledoni (Appellants) appealed against the Johnstone Shire Council's approval of a development application by the co-respondent, Troncs Carrying Service, to establish a Rural Service Industry – Heavy Vehicle Service Centre – on land at the corner of South Boogan Road and the Bruce Highway, south of Mourilyan. The primary legal issue was whether the proposed development was inconsistent with the Planning Scheme for the Johnstone Shire and, if so, whether there was an overriding need to approve the proposal. The Court examined the purposes of the Rural Zone, including protecting good quality agricultural land and maintaining the rural amenity and character of the existing rural landscape. It also considered the State Planning Policy 1/92: Development and the Conservation of Agricultural Land. The Court found that while the proposal had minor inconsistencies with the Planning Scheme, the overriding need for the development outweighed these inconsistencies due to the benefits it would bring to the co-respondent's operation and the broader community. The Court determined that the proposed development would improve the efficiency of the co-respondent's transport operations, particularly for the sugar industry, and reduce traffic through Innisfail, thereby benefiting the community. The Court also found that appropriate conditions could be imposed to address stormwater management, flood mitigation, and the appellants' concerns about rural amenity.

The Court concluded that the proposed development would sit comfortably within the industry zone that applies to the Innisfail Industrial Estate but was less suitable due to its location. The Court was satisfied that the appellants' concerns about rural amenity were genuine but determined that their amenity was already substantially compromised. The Court also found that the co-respondent's willingness to extensively landscape the site would effectively protect the appellants' amenity. The Court proposed to dismiss the appeal subject to the finalisation of a condition relating to the earth wall and landscaping.

Orders