Cox v Maroochy Shire Council - [2006] QPEC 51

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Cox & Ors v Maroochy Shire Council & Ors [2006] QPEC 051

PARTIES:

ELIZABETH COX, JORG HERRMAN, LLOYD LAITY
Applicants
v
MAROOCHY SHIRE COUNCIL
First Respondent
and
KATE DILLON
Second Respondent
and
RONALD FREDERICK MILLER and MARSHA DARLENE MILLER
Third Respondents
and
SUNCOAST BUILDING APPROVALS (a firm)
Fourth Respondent

FILE NO/S:

Appeal No 127 of 2005

DIVISION:

Planning & Environment

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

22 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

13-17 March 2006; submissions 18 May 2006

JUDGE:

Skoien SJDC

ORDER:

Application dismissed.

CATCHWORDS:

Code assessable, very large house. Assessment of slope; whether certain rooms and spaces constitute a storey; encroachment within side boundary set back; performance criteria and acceptable measures; amenity; bulk, streetscape; jurisdictional error; Wednesbury principle.

COUNSEL: Mr S Keim for applicants
Mr M Williamson for first respondent

SOLICITORS:
Mr P Lyons QC with Mr W Cochrane for second and third respondents
No appearance for fourth respondent
P&E Law for applicant
Maroochy Shire Legal Services for first respondent
Crilly Lawyers for second and third respondents

The applicants, by their originating application, seek declarations under s.4.1.21 of the Integrated Planning Act 1997 (“IPA”), challenging the validity of a preliminary approval for building works granted by the Council on land owned by the Millers at 3-5 Riverview Avenue, Buderim (“the site”). The application also seeks injunctive relief, under s.4.3.26 of IPA, in respect of the building which is now largely constructed on the site. The planning instrument for the area is Maroochydore Plan 2000 (“MP2K”)

Background

The Millers are the registered proprietors of the site (Lots 3 and 4 on RP 124292. At the date of the hearing of this application an existing dwelling on Lot 4 was being extended into and over Lot 3. Thus the development which is the subject of these proceedings is the extension which stands partly on Lot 3 and substantially on Lot 4.

Mrs Dillon, the previous owner of the existing house on Lot 3, is the project manager for the Millers. On 27 October 2003 she submitted an application to the Council for a preliminary approval for code assessable building works for the extension. The application was required because the extension (which would otherwise have been self-assessable development) did not comply with Acceptable Measure A1.6.1 of Code 2.1.4 (Element 2) of the MP2K – setback requirements for building envelope. In that circumstance s.4(9) of MP2K provides that the application becomes Code assessable but only against the code the development does not comply with. The application was assessed by the Council as a code assessable application.

On 19 November 2003, the Council issued an information request seeking details of survey data of existing ground levels and confirmation that the existing dwelling and extension was to be used as a single detached dwelling. This was supplied by Suncoast, on behalf of Mrs Dillon and the Millers on 24 November 2003.

On 27 November 2003, the Council approved the application for a preliminary…

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: [2006] QPEC 51
Decision Date: 22 May 2006

CaseChat Overview and Summary

Cox has brought an application for judicial review of the Maroochy Shire Council's decision to approve an application for development on a steep and unstable site. The approval was given under the Moreton Bay Regional Planning Scheme. The applicants argue that the Council erred in its consideration of the development application and that the approval is invalid. Cox seeks a declaration that the Council's decision is void and should be quashed, and for the matter to be remitted to the Council for reconsideration. The respondents argue that the applicants have failed to establish that the Council's decision was irrational or otherwise invalid. The legal issues the Court was required to decide included whether the Council erred in its consideration of the development application and whether the approval is invalid. The Court found that the Council did not err in its consideration of the development application and that the approval is valid. The Court found that the Council's decision was not irrational or otherwise invalid, and that the applicants had failed to establish any grounds for judicial review. The Court dismissed the application and made no orders.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 3.5.13 of IPA is (relevantly):“3.5.13 Decision if application requires code assessment(1) This section applies to any part of the application requiring code assessment.(2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.(3) Subject to subsection (2) the assessment manager’s decision may conflict with an applicable code only if there are enough grounds to justify the decision having regard to –(a) the purpose of the code; (b) …(4) However –(a) …(b) if the decision is made under subsection (3)(a) and the assessment is against a code in a planning scheme – the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme.” I now turn to each of the currently alleged defaults of the Council in considering the application, as set out in para 28 of the applicants’ points of claim. Section 2.1.4 of Volume 4 provides the Code for Development on Steep or Unstable Land and in subsection (1) the purpose of the code is expressed to be (relevantly):“for the avoidance or minimisation of undesirable consequences by ensuring development on steep or unstable land, and involving;the erection of buildings … is consistent with the desirable physical environmental and visual characteristics of such land …” The applicants rely on Element 2 (Building Design and Site Layout) Performance criterion P1 of the Code which is:“P1 Development must be designed, sited and erected to respect and be visually integrated with the streetscape and the natural surroundings whilst ensuring:·development is not visually intrusive, particularly from ridge lines, public open spaces and other vantage points outside the site,·development occurs on less steep parts of the site that do not unacceptably increase the visibility of the buildings from adjacent areas and in a form that allows natural land forms and vegetation to be maintained as much as possible.” Performance Criterion P2 is (relevantly):“P2 Buildings … must be designed and sited to minimise adverse impacts on amenity of neighbouring sites with regard to ensuring acceptable:·views and outlook, and·privacy.” Acceptable measure A1.1 to P1 and P2 is:“A1 For assessable development, development occurs in accordance with an approved Site Analysis Report which addresses all issues raised in the Performance Criterion.” Acceptable measure A1.6.1 deals with side boundary building setback and it is undisputed that the building as planned (indeed as now constructed) offends the setback. The north western corner of the ceiling of the home theatre is within the setback area. The offending portion is a three sided pyramid in shape with each side (horizontal from the apex towards the south, horizontal from the apex towards the east and vertical from the apex downwards) measuring about 3m, 1.5m and 1.5m respectively.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cox & Ors v Maroochy Shire Council & Ors [2006] QPEC 051
PARTIES:	ELIZABETH COX, JORG HERRMAN, LLOYD LAITY Applicants v MAROOCHY SHIRE COUNCIL First Respondent and KATE DILLON Second Respondent and RONALD FREDERICK MILLER and MARSHA DARLENE MILLER Third Respondents and SUNCOAST BUILDING APPROVALS (a firm) Fourth Respondent
FILE NO/S:	Appeal No 127 of 2005
DIVISION:	Planning & Environment
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	22 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	13-17 March 2006; submissions 18 May 2006
JUDGE:	Skoien SJDC
ORDER:	Application dismissed.
CATCHWORDS:	Code assessable, very large house. Assessment of slope; whether certain rooms and spaces constitute a storey; encroachment within side boundary set back; performance criteria and acceptable measures; amenity; bulk, streetscape; jurisdictional error; Wednesbury principle.
COUNSEL:	Mr S Keim for applicants Mr M Williamson for first respondent
SOLICITORS:	Mr P Lyons QC with Mr W Cochrane for second and third respondents No appearance for fourth respondent P&E Law for applicant Maroochy Shire Legal Services for first respondent Crilly Lawyers for second and third respondents