Charles & Howard Pty Ltd v Redland Shire Council

SUPREME COURT OF QUEENSLAND

CITATION:

Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200

PARTIES:

CHARLES & HOWARD PTY LTD ACN 000 053 001
(appellant/applicant)
v
REDLAND SHIRE COUNCIL
(respondent)

FILE NO/S:

Appeal No 8518 of 2006
DC No 391 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2007

JUDGES:

McMurdo P, Holmes JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal refused with costs

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – POWERS WITH RESPECT TO PLANNING SCHEMES – where the learned primary judge made determinations based upon the provisions of the 1988 planning scheme in force at the time of the development application – where relevant provisions of the 2006 planning scheme in force at the time of the appeal were also given weight – where the Planning and Environment Court was entitled under s 4.1.52(2)(a) Integrated Planning Act 1997 (Qld) to "give weight to any new laws and policies the court considers appropriate" – whether the learned primary judge erred in his construction of the planning instruments and partial reliance on the 2006 planning scheme

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – where the learned primary judge made no specific finding that the fill proposed for the development was not "of a minor nature" – where however the effect of the judge's careful reasoning was that the fill was not "of a minor nature" – whether it was open for the judge to make that determination

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – where the judge conducted a comparative analysis between the relevant merits of competing proposed locations on the same site – whether this amounted to an erroneous "best sites" test

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – CONDITIONS – RELEVANCE AND REASONABLENESS – GENERALLY – where development approval was given subject to conditions – where the disputed condition required fill to be placed in a different location on the site – whether the disputed condition was unreasonable – whether the disputed condition had the effect of significantly altering the proposed development

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – where the learned primary judge had regard for the impact of climate change on sea levels when considering approval to place fill on the land – where the Redland Shire Council's 1998 strategic plan required that sea level changes resulting from changes in climatic conditions be considered when determining…

CaseChat Overview and Summary

Charles & Howard Pty Ltd was involved in a dispute with the Redland Shire Council concerning a development application. The Planning and Environment Court of Queensland was tasked with determining whether the primary judge had erred in his interpretation of the planning instruments, whether the fill proposed for the development was of a minor nature, if a comparative analysis of competing proposed locations on the same site constituted an erroneous "best sites" test, and if the condition imposed on the development approval was unreasonable. The court also needed to decide whether the primary judge had considered the impact of climate change on sea levels when approving the placement of fill on the land, and whether he had improperly taken on a Council planning issue.

The legal issues revolved around the interpretation of the planning instruments, the nature of the fill proposed, the appropriateness of a comparative analysis between competing development locations, the reasonableness of the imposed development condition, and the consideration of climate change impacts. The court examined whether the primary judge had correctly applied the 1988 planning scheme in force at the time of the development application, and if it was appropriate to also consider the 2006 planning scheme provisions in force at the time of the appeal. The court further assessed whether the primary judge's decision-making process, including his consideration of climate change, was within his jurisdictional scope.

The Planning and Environment Court found that the primary judge did not err in his construction of the planning instruments and his partial reliance on the 2006 planning scheme, as he was entitled to consider new laws and policies under the Integrated Planning Act 1997 (Qld). The court concluded that the primary judge had effectively determined that the fill was not of a minor nature, even though he did not explicitly state so. The comparative analysis conducted by the primary judge was not deemed an erroneous "best sites" test. The condition imposed on the development approval was found to be reasonable and did not significantly alter the proposed development. Lastly, the court found that the primary judge did not improperly take on a Council planning issue when considering the impact of climate change on sea levels, as the Council's strategic plan required such consideration.

The court refused the application for leave to appeal and ordered the applicant to pay costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200
PARTIES:	CHARLES & HOWARD PTY LTD ACN 000 053 001 (appellant/applicant) v REDLAND SHIRE COUNCIL (respondent)
FILE NO/S:	Appeal No 8518 of 2006 DC No 391 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Integrated Planning Act
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2007
JUDGES:	McMurdo P, Holmes JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal refused with costs
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – POWERS WITH RESPECT TO PLANNING SCHEMES – where the learned primary judge made determinations based upon the provisions of the 1988 planning scheme in force at the time of the development application – where relevant provisions of the 2006 planning scheme in force at the time of the appeal were also given weight – where the Planning and Environment Court was entitled under s 4.1.52(2)(a) Integrated Planning Act 1997 (Qld) to "give weight to any new laws and policies the court considers appropriate" – whether the learned primary judge erred in his construction of the planning instruments and partial reliance on the 2006 planning scheme ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – where the learned primary judge made no specific finding that the fill proposed for the development was not "of a minor nature" – where however the effect of the judge's careful reasoning was that the fill was not "of a minor nature" – whether it was open for the judge to make that determination ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – where the judge conducted a comparative analysis between the relevant merits of competing proposed locations on the same site – whether this amounted to an erroneous "best sites" test ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – CONDITIONS – RELEVANCE AND REASONABLENESS – GENERALLY – where development approval was given subject to conditions – where the disputed condition required fill to be placed in a different location on the site – whether the disputed condition was unreasonable – whether the disputed condition had the effect of significantly altering the proposed development ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – where the learned primary judge had regard for the impact of climate change on sea levels when considering approval to place fill on the land – where the Redland Shire Council's 1998 strategic plan required that sea level changes resulting from changes in climatic conditions be considered when determining…