Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78

PARTIES:

ROBERT ENGWIRDA and SHELLEY ENGWIRDA

(atf THE ENGWIRDA SUPERANNUATION FUND)

(Appellants)

v

MACKAY CITY COUNCIL

(Respondent)

FILE NO/S:

109 of 2007

DIVISION:

Appellate

PROCEEDING:

Applicant appeal

ORIGINATING COURT:

Mackay

DELIVERED ON:

27 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2008

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed

CATCHWORDS:

Applicant appeal – reconfiguration of a lot (1 into 2) and material change of use for dwelling houses on small lots – area and dimensions of proposed lots in conflict with the Reconfiguration of a Lot Code – zoning changed under new scheme – whether grounds to approve notwithstanding conflict

COUNSEL:

Mr Baulch S C for the appellant

Mr Skoien for the respondent

SOLICITORS:

Macrossan and Amiet for the appellants

S B Wright Wright and Condie for the respondent

1. This is an applicant appeal against the deemed refusal of a development application seeking development permits to reconfigure a lot (by subdivision of one lot into two) and for a material change of use to permit the construction of dwelling houses on small lots.  The subject site is a conventional residential allotment of 874m², located at 5 Gorman Street, Bakers Creek.  It is proposed to subdivide it to create an additional “battleaxe” lot at the rear.

1. The application was code assessable.  The council, in resisting the appeal, notified the following issues, which allege conflict with applicable codes:-

“1.The proposed development is inconsistent with the following provisions of the Mackay City Plan Scheme:

(a)Specific Outcomes P1 & P2 of the Mackay Hinterland locality – Village Zone Code in that the proposal is inconsistent with the density and character of existing development in the vicinity of the subject site;

(b)Pioneer River and Southern Streams Precincts Specific Outcome – P1 and Acceptable/Probable Solution S1 of the Mackay Hinterland Locality – Village Zone Code in that the proposed lots are within 250 metres of an existing rural zone;

(c)Overall Design Specific Outcome – P1 and Lot Area and Dimensions Specific Outcome – P1 of the Reconfiguration of a Lot Code in that the proposed lots are less than the prescribed minimum area, frontage and depth.

(d)Lot Area and Dimension Specific Outcome – P5 in that the proposal involves a proposed battleaxe lot which increases the density applicable to the Village Zone;

(e)High Impact Activity Area Specific Outcome – P1 in that the proposed lots are located within 1000 metres of an existing meatworks facility.

2.The appellant has not, in the respondent’s opinion, provided sufficient planning grounds to warrant approval notwithstanding the conflict with the planning scheme.”

1. The respondent did not press grounds (1)(b) or (e).  The council’s case focussed upon the size of the proposed allotments and, in particular, upon the alleged unacceptability of the density of the proposal, having regard to existing development in the area and the provisions of the planning scheme.

1. The site is located in a residential area…