Cornerstone Properties Ltd v Caloundra City Council - [2005] QPEC 44

DISTRICT COURT OF QUEENSLAND

CITATION:	Grabbe v Maroochy Shire Council [2005] QPEC 044
PARTIES:	RON GRABBE (Applicant)
AND
MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO/S:	55 of 2005
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING
COURT:	District Court
DELIVERED ON:	6 May 2005
DELIVERED AT:	Maroochydore
HEARING DATE:	14 April 2005
JUDGE:	Judge J.M. Robertson
ORDER:
Condition 52(a) of the conditions of approval as imposed by a consent order made by this court at Brisbane in Appeal No. 2824 of 1998 on 11 December 1998, be deleted.
CATCHWORDS:	Application for declarations and for deletion of condition of approval pursuant to s3.5.33 of the Integrated Planning Act; whether there has been a material change of use on adjoining land and abandonment of agricultural use; whether condition is still reasonably required and/or an unreasonable imposition on the use of the land.
*Cases cited:*
Fox & Anor v Brisbane City Council [2003] QPELR 215
Maroochy Shire Council v Burns [2001] QPELR 475 at 482
Leeming v Port Adelaide City Council (1987) LGRA 296
Cornerstone Properties Ltd v Caloundra City Council [2004] QPELR 044
Proctor v Brisbane City Council (1993) 81 LGERA 398
*Legislation:*
Integrated Planning Act: ss1.3.5, 3.5.30, 3.5.33 Planning Environment Court Rules 1999: Rule 8
COUNSEL:	Mr D. Fahl (solicitor for the applicant) Mr M. Williamson (for the respondent)
SOLICITORS:	p&e Law (for the applicant) G N Phillips Legal Services (for the respondent)

ACN 059 706 902 Pty Limited is the registered proprietor of five blocks of land in the Orange County estate at Palmwoods described as Lots 18 to 22 SP 123703, County of Canning, Parish of Mooloolah (“the land”). Ron Grabbe is the sole director and shareholder of this company which has consented to him applying to this Court for approval to delete a condition of approval imposed by a consent order of this court on 11 December 1998.
The court made consent orders in an appeal by Orange County Pty Ltd against a conditional approval for a staged subdivision of certain lands of which the land formed a part. The subdivision has now been completed.
At the time of the court order, the land (then not subdivided) adjoined Lot 1 RP 110268 on which was conducted a small agricultural enterprise, in particular, macadamia nut farming. The applicant now applies to have condition 52(a) of the court order deleted on a number of grounds.
Condition 52(a) is in these terms:

“Applicant to provide Council with a lease over Lots 18 to 22 and to provide a vegetated buffer over these lots to Department of Natural Resources guidelines to protect balance of Stage 1 from Agricultural spray use. Landscape plan of Buffer to be submitted to Department of Natural Resources for approval prior to planting. Lease to Council will be surrendered by Council on Material Change of use occurring on Lot 1 RP 110268. All fees associated with the preparation of Lease are to be borne by the developer. Orange County to be responsible for maintenance of the Lots with Council responsible for…

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.

Continue reading Cornerstone Properties Ltd v Caloundra City Council

Details

AGLC: Cornerstone Properties Ltd v Caloundra City Council [2005] QPEC 44
Case: [2005] QPEC 44
Decision Date: 6/05/2005

CaseChat Overview and Summary

Cornerstone Properties Limited sought declarations and the deletion of a condition of approval imposed by Caloundra City Council pursuant to section 3.5.33 of the Integrated Planning Act. The dispute centred on whether there had been a material change of use on adjoining land and the abandonment of agricultural use, and if the condition was still reasonably required or constituted an unreasonable imposition on the use of the land. The case was heard in the Queensland Land Court, which was tasked with determining the legal issues surrounding the condition of approval.

The court had to decide whether the change in use of the adjoining land constituted a material alteration that warranted the deletion of the condition of approval. This involved examining the evidence to determine if there had been a significant shift from agricultural use to another type of land use. Additionally, the court needed to assess whether the condition of approval remained reasonably required, or if it had become an unreasonable imposition on the property owner's ability to use the land effectively. This required a careful consideration of the current circumstances and the original intent behind the condition.

In reaching its decision, the court examined the evidence presented regarding the changes in land use and the surrounding context. It concluded that while there had been some changes in the use of the adjoining land, these did not amount to a material change of use sufficient to warrant the deletion of the condition. The court found that the condition remained reasonably required to protect the interests of the adjoining property owners and was not an unreasonable imposition on the use of the land. Consequently, the application for the deletion of the condition of approval was dismissed.

The final orders of the court were that the application for declarations and the deletion of the condition of approval imposed by Caloundra City Council be dismissed. The condition of approval would remain in effect, ensuring that the interests of the adjoining property owners were protected.

Orders